Gujarat High Court
Arvindbhai Surjibhai Vaghat vs State Of Gujarat on 7 July, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/7343/2022 JUDGMENT DATED: 07/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7343 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ARVINDBHAI SURJIBHAI VAGHAT
Versus
STATE OF GUJARAT
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Appearance:
DHRUVIK K PATEL(7769) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,5,6,7,8,9
MR ZUBIN F BHARDA(159) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,5,6,7,8,9
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 07/07/2022
ORAL JUDGMENT
Rule. Learned advocates appearing for the respective respondents waive service of notice of rule.
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1. The present writ petition has been filed inter alia for the following reliefs:
"8A. YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus to respondent no.2 GETCO to consider installing underground cable laying of 66 KV underground electrical cable for Sarigam-Saorda electric line as the said purpose as the up overhead line is being the illegal, discriminating and arbitrary;
B. YOUR LORDSHIPS be please to issue an appropriate, writ, order or direction in the nature of Mandamus quashing and setting aside the order dated 02.03.2022 passed by Sub-Divisional Magistrate, pardi as same being illegal, discriminating and arbitrary;"
2. At the outset, learned advocate Mr.Hasurkar appearing for the respondent No.2 has submitted that work of laying the cables is over after constructions of towers and electricity is also in operation.
3. Learned advocate Mr.Zubin Bharda appearing for the petitioners has submitted that the petitioners are not paid any compensation for their land being utilized for installation for underground cable. He has placed reliance on the provision of Section 10(c) and (d) of the Indian Telegraph Act, 1885 (for short "the Telegraph Act"). He has also placed reliance on the provision of Section 16 of the Telegraph Act and has submitted that the petitioners can only approach District Judge, if compensation is not paid. Further, it is not denied by the learned Page 2 of 9 Downloaded on : Mon Jul 11 21:37:11 IST 2022 C/SCA/7343/2022 JUDGMENT DATED: 07/07/2022 advocate that the electric cables are also installed after construction of towers and electric charge is also operational. He has placed reliance on the provision of Clause (d) and sub-section (i) of Clause (e) of Section 4 of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (for short "the PESA Act") and has submitted that Gramsabha in fact, vide communication dated 07.10.2021 had objected for construction or laying down of the cables however, nothing was done. It is submitted that thus, the prayers made in the writ petition may be allowed.
4. Per contra, learned advocate Mr.Hasurkar has urged that since the work is already over, this Court may not interfere at this stage by directing the respondent authority to remove the cables as well as the towers, which are constructed as it would affect the public at large. So far as Section 4 of PESA Act is concerned, it is submitted that the same will apply only in the case of acquisition of the land and, in the present case, and there is no acquisition of land. He has placed reliance on the decision of Division Bench of this Court in the case of Himmatbhai Vallabhbhai Patel Vs. Chief Engineer (Project) Gujarat Energy Transmission and Ors., 2011 (2) GLH 781, more particularly paragraph No.52. He has further submitted that the petitioners have remedy under Sections 16 and 17 of the Telegraph Act, if they so desire.
5. Heard the learned advocates for the respective parties and also perused the documents Page 3 of 9 Downloaded on : Mon Jul 11 21:37:11 IST 2022 C/SCA/7343/2022 JUDGMENT DATED: 07/07/2022 as pointed out by them.
6. The fact, which is not disputed, is that as on today, the entire work of laying the cables is already over, towers are already constructed and electricity lines are in operation. Thus, after completion of entire work and in the wake of the fact that the electric lines are in operation, this Court, cannot issue any mandamus to the respondents to demolish the towers and to shift the cables. The only prayer made in the writ petition is with regard to issuance of direction in nature of mandamus to the respondent No.2- GETCO to consider installing underground cable laying of 66 KV underground electrical cable for Sarigam-Saorda line, and second prayer refers to issue of order or direction in the nature of mandamus quashing and setting aside the order dated 02.03.2022 passed by the Sub-Divisional Magistrate, Pardi. Thus, no prayer with regard to compensation has been incorporated in the writ petition.
7. At this stage, it would be apposite to refer to the observation made by the Division Bench of this Court in the case of Himmatbhai Vallabhbhai Patel (supra), which reads as under:
"49. We would also like to state that it is a settled position of law 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 for the appropriate authority/Government to decide as to which particular land would be more Page 4 of 9 Downloaded on : Mon Jul 11 21:37:11 IST 2022 C/SCA/7343/2022 JUDGMENT DATED: 07/07/2022 suitable for the public purpose in question. In this connection, reference can be made to a decision of the Supreme Court in the case of State of Punjab v/s. Gurdial Singh, reported in AIR 1980 SC 319. In paragraph 8 of the reported decision, the Hon'ble Supreme Court has, inter alia, observed as follows:-
"This power to select is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset."
50. Again in the case of Ramgir Uttamgir Goswami v/ s. State of Gujarat, reported in 1988(1) GLR 502, the Hon'ble Supreme Court has, in paragraph 7 of the reported decision, observed that the assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the authority to consider. Paragraph 7 of the judgment reads as under:-
"The next submission of Mr.Mehta was that the land acquisition authorities have failed to consider what were the other lands available which could have been more conveniently acquired for the public purpose referred to earlier. It was pointed out by him that in the writ petition, the appellant (petitioner) has alleged that he could have pointed out certain other lands and open spaces where the twelve families rendered homeless by the floods of Tapti river could have been housed. With reference to these allegations, the respondents in their counter-affidavit filed before the Gujarat High Court have rightly pointed out that the appellants had not given any details regarding other more suitable lands available for acquisition and hence it was not open to him to make a grievance on that score. Moreover, in paragraph 29 of the counter- affidavit, the respondents have pointed out that the lands referred to by the appellant in his petition were not suitable for housing the victims of the floods because they were low lying Page 5 of 9 Downloaded on : Mon Jul 11 21:37:11 IST 2022 C/SCA/7343/2022 JUDGMENT DATED: 07/07/2022 lands and not suitable for residential purposes. The assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the Land Acquisition Officer to consider and no good reason has been shown to us which could warrant interference with his decision. Moreover, we are satisfied that the appellant had not even given proper particulars of the other lands which, according to him, were available for acquisition and were more suitable for acquisition and hence he can make no grievance on the score of proper consideration not having been given to the question of acquiring of such lands."
51. We are of the view that it cannot be said that the land has been selected in breach of any of the constitutional provisions. It is not even argued or urged that any of the constitutional provisions have been violated in selecting the land of the ownership of the appellants. Therefore, no case for interference with the decision of the statutory authorities in selecting the land is made out by the appellants.
52. In the aforesaid view of the matter, the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003 on any ground whatsoever. Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraphs Act, 1885 recognized the absolute power of the respondent Company to proceed with laying high tension electric lines or electric polls for the transmission of electricity on or over the lands belonging to the appellant herein subject to the right of the appellant to claim compensation if any damage is sustained by him by reason of laying such high tension electric lines. In other words, neither the acquisition of lands is necessary nor there is any need for consent of the appellant. Hence, no mandamus can be issued restraining the respondent Company from proceeding with the erection of polls and transmission lines through the land of the appellant. However, this shall not preclude the appellant to claim compensation by working out the appropriate remedy as available under law in case any damage is sustained to his property.
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8. Thus, the Division Bench of this Court has held that the provision of Electricity Act, 2003 and Indian Telegraph Act, 1985 recognize to proceed with placing of electric supply lines or electric polls for the transmission of electricity on or over the private lands subject to the right of the owner or occupier to claim compensation if any damage is sustained. It is asserted by the Division Bench that neither acquisition of land is necessary nor there is any need for consent of such persons hence, no mandamus can be issued restraining the electricity company to proceed with placing of electric polls and supply lines of the electricity. It is further observed that however, such action of the company shall not preclude the appellant to claim the compensation by working out the appropriate remedy as available under the law in case any damage is sustained to the property.
9. Reliance is placed by the petitioners on section 4(d)(e)(i) of the PESA Act, which read as under:
SECTION 4 : Exceptions and modifications to Part IX of the Constitution.-
Notwithstanding anything contained under Part 9 of the Constitution , the Legislature of a State shall not make any law under that Part which is inconsistent with any of the following features, namely :-
(a) ............;
(b) ............:Page 7 of 9 Downloaded on : Mon Jul 11 21:37:11 IST 2022
C/SCA/7343/2022 JUDGMENT DATED: 07/07/2022
(c)...........
(d) every Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution;
(e) every Gram Sabha shall-
(i) approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level;
9.1 A plain and literal reading of the aforementioned provision reveal that the same do not in any manner stand in conflict with the construction of electricity lines or supply of electricity. On the contrary, the provision section 4(e)(i) casts an obligation on a Gram Sabha to approve the plans, programmes and projects for social and economic development. Any interference at this stage by this Court will affect the public large and the project of supplying the electricity will be entirely jeopardized, hence no directions as sought in the writ petition can be issued.
10. As per the directions and observations made by the Division Bench, this Court cannot exercise its power vested under Article 226 of the Constitution of India to direct the respondents to alter the cables of high tension electricity lines or polls however, the Division bench has reserved the right of claiming damages or Page 8 of 9 Downloaded on : Mon Jul 11 21:37:11 IST 2022 C/SCA/7343/2022 JUDGMENT DATED: 07/07/2022 compensation by filing appropriate remedy before the appropriate Court. The petitioners have not filed any application before any forum with regard to claim the compensation. No prayer in the writ petition in this regard is also made. However, liberty is reserved in favour of the petitioners to file appropriate proceedings before appropriate forum for claiming damages or compensation.
11. In this view of the matter, the writ petition fails. Rule is discharged.
Sd/-
(A. S. SUPEHIA, J) NVMEWADA Page 9 of 9 Downloaded on : Mon Jul 11 21:37:11 IST 2022