Calcutta High Court (Appellete Side)
Laxmi Pat Surana vs The Chairman on 2 July, 2018
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Harish Tandon.
W.P. No. 22923 (W) of 2012
Laxmi Pat Surana.
v.
The Chairman, West Bengal State
Electricity Distribution Company Limited & Ors.
Petitioner (In person) : Mr. Laxmi Pat Surana.
For the WBSEDCL. : Mr. Bhaskar Mitra,
Mr. R. M. Chattopadhyay.
For the Railways : Mr. L. K. Chatterjee,
Mr. U. S. Bhattacharjee.
Judgment on : July 02, 2018.
The Court:- The writ petition was filed by the petitioner seeking
reliefs against the Railway Authorities as well as the West Bengal State
Electricity Distribution Company Limited (hereinafter referred to as
"Distribution Company") to give supply of electricity so that the complex,
which the petitioner undertook to construct, may be energized and
simultaneously a direction was sought upon the South-Eastern Railway
to forthwith grant way leave permission and accord approval for
installation of electrical poles to cater the supply of electricity thereat.
It would not be the out of place to mention that during the
currency of the writ petition several orders came to be passed; by virtue
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whereof the scope, which was limited, was expanded and several points
were raised by the respective parties; the foundation whereof is not there
in the original writ petition, but can be traced from several affidavits filed
in the said writ petition.
The progress in the writ petition can be jotted down or adumbrated
as under:
The Railway Board decided to commercially exploit the surplus
land by way of a development through private party by making
construction of a commercial complex. A tender was floated inviting the
bid from the prospective developers, who were interested in construction
of commercial complex at the surplus land of the Railway and it is not in
dispute that the petitioner was adjudged as a successful bidder. The
aforesaid development work was intended on a surplus land comprised of
2.06 acres and it was clearly indicated in the 'notice inviting tender' that
the initial period for licence/lease, as the case may be, shall be 10 years
expandable for a like term.
After the petitioner having found successful in the said tender
process, a letter of acceptance was issued on 18th December, 2002,
which stipulates that the petitioner shall furnish Bank Guarantee of Rs.
2.10 crores. It is a specific stand of the petitioner that he complied those
conditions and a formal agreement was executed on 16th April, 2004 and
it was decided by the Railways that the period initially shown in the
'notice inviting tender' is too short and does not appear to be
commercially viable. Such period was extended to 25 years with an
option of extension of like term at the discretion of the railway
administration. The said agreement also contains an Arbitration Clause
and invocation thereof have been made by the parties, which will be
recorded hereinafter. The tenet of the said agreement would evince that it
was all along intended by the Railway Administration that they would
remain owner of the land and shall become the owner of the structure as
well after the expiration of the initial period or extended period, as the
case may be.
By way of a prohibition clause the petitioner was prevented from
encroaching any other land of the Railways nor shall make any
construction beyond the demised land. By virtue of the said agreement
the petitioner was entitled to induct several sub-lessees upon receiving
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premium and rent as per his discretion and the Railway Authorities shall
not have any say in this regard.
According to the petitioner, he deposited a sum of Rs.50 lakhs by
way of a Bank Draft on 6th March, 2003 and further furnished a Bank
Guarantee covering 1 crore 50 lakhs on 27th December, 2003. Since it
was a time bound project, it was intended by the parties to complete the
construction within a reasonable time, which admittedly has not been
done, as the parties are at variance on their respective stands. As per the
petitioner, though he was ready and willing to perform all his obligations
under the said agreement, yet he was prevented because of several
litigation initiated by the persons of nearby locality before this Court;
wherein an injunction was passed, which prevented further steps to be
taken in terms of the said agreement.
However, the petitioner could succeed in making a part
construction at the said plot of land and inducted sub-lessees thereat.
The petitioner executed and completed all the works for the purpose of
energization of the said complex and an application was also made before
the Distribution Company to provide the supply of electricity thereat. The
aforesaid application was made to the Distribution Company, as the
Railway Authorities were unable to supply the electricity to the petitioner
at the said complex.
It is undisputed that the Distribution Company processed the
application filed by the petitioner and agreed to provide the electricity at
the commercial complex undertaken by the petitioner, but later on
indicated that since the supply is to be effected from a substation
situated at Nimpura, which is nearly 4.66 Kms from the said commercial
complex, the way leave permission is required for supply of electricity.
The aforesaid stand was taken by the Distribution Company, as laying of
electrical pole for such a long stretch requires use of the other railway
land and communicated to the petitioner that he has to obtain such way
leave permission.
The petitioner approached the Railway Authorities for grant of way
leave permission and was informed that the way leave permission can
only be granted to the Distribution Company or the licensee and not to
an individual, vide letter dated 19th December, 2007.
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Apropos the same the Distribution Company approached the
Railway Authorities for way leave permission and was communicated
that as per circular issued by the Railway Board dated 27th November,
2001 one time way leave charge of Rs.12,800/- is required to be
deposited and the Distribution Company showed their willingness to
deposit the said amount.
The dispute took a different turn at such stage. Different
authorities of the Railways were contemplating as to whether a fixed
charge of Rs.12,800/- for way leave permission is applicable to the
instant case or it should be determined at the rate of 6% of the market
price of the land. The matter was moved before the different authorities.
Annexure - I at page 48 of the affidavit-in-reply contains a note
with the Subject as way leave permission for drawal of power supply from
substation Nimpura to commercial complex and the comments and the
decision of various authorities appended thereto. The aforesaid note was
placed by the Divisional Engineer, Headquarter at Kharagpur on 6th
June, 2008 indicating the difference of opinion of various authorities over
the applicability of Clause 6-I (e) and 6-II (d) of the said Railway Circular
dated 27th November, 2001 on way leave charges.
One can see from the said note of the Divisional Engineer,
Headquarter, Kharagpur, wherein he indicated that in a similar case
relating to way leave permission for electrification at Gate Bazar and Gole
Bazar, Kharagpur, Clause I(e) of para 6 of the said circular was adopted
and, therefore, the instant case should also be dealt with in such
manner. Senior Divisional Engineer, Kharagpur opined that Clause I(e) of
para 6 of the said Railway Board's circular should be adopted, which was
duly concurred by the Divisional Railway Manager on 11th June, 2008.
The attention of the Court is further drawn to another note
prepared on 6th May, 2008 containing the comments and views of the
Divisional Railway Manager, which is extracted as under:
"I agree with the view of Sr. DEE (G), Kharagpur. Supply of
power to the Gole Bazar and Gate Bazar is essential as a public
utility and also since the arrangement with WBSEDCL has been
made on Rly's initiative for the benefit of both railways and marked
area.
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Since the proposed transmission/distribution line has to be
drawn only through railway land (thing being no other option
available) the condition of 50 mtrs mentioned that 'X' can be
considered relevant/applicable and has to be treated as an
unavailable / exceptional case. This aspect has not been .... brought
out in the reference to HQs.
Way leave charge have, therefore, to be worked out and levied
as per Clause I9e) of para 6 of Bd's circular at Flag 'c'." (Sic)
A bare look of the note, comments and views appended thereto
apparently brings the issues to its end, but it did not end there, as such
dispute was further reopened by the different officials including the said
officials because of the inconsistency over the applicability of the
aforesaid Clauses of the Railway Board Circular. It would be apposite
and profitable to quote the said Railway Board Circular, which in my
opinion clinches the main issue, and reproduced as under:
"GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
RAILWAY BOARD
No. 97/LML/24/3 New Delhi, dt.
27.11.2001
The General Managers,
All Indian Railways & Production Units.
Sub: Granting of way leave facilities/easement rights - Policy regarding
The policy regarding grant of way leave facilities/easement rights
has been laid down in Board's letter of even number dt. 10.7.98 read
with letters dt. 8.12.98 and 7.1.99. In pursuance of suggestions
received from various Zonal Railways it has now been decided that in
suppression of all the instructions issued earlier on the subject, the
guidelines as laid down below should be followed in the matter of
granting way leave facilities/easement rights on railway land.
2. Sections 16 and 17 of the Railways Act, 1989 enjoin upon the
Railways to make and maintain specified works for the accommodation of
the owners and occupiers of the lands adjoining the railway, for the
purpose of making good any interruptions caused by the railway to the
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use of the lands thorough which the railway is made. Such works include
crossings, passages, drains, water courses etc. Apart from these,
requests are often received for provision of way leave/easement on
railway land in the form of passage/access to private houses and
establishments, underground pipelines for water supply and sewerage,
electrical and telecommunication lines, etc. In many cases, these are
unavoidable in view of the very nature and extent of the railway
alignment.
3. Requests for granting way leave facilities/easement rights,
therefore, need to be considered with due regard to the circumstances of
each case. Some such illustrative circumstances include:
i) Non-availability of any other means of access to properties/houses;
ii) Non-feasibility of provision of water supply, electricity, sewerages,
etc. from any other direction.
4. By its very definition, way leave facility/easement right on
railway land involves occasional or limited use of land by a party for a
specified purpose like passage etc., without conferring upon the party
and right of possession or occupation of the land and without in any
way affecting the Railways' title, possession, control and use of the
land.
5. In genuine and unavoidable cases, way leave facility/easement
right maybe allowed after execution of proper agreements. It may be
noted that the land is not lecensed, but only permission granted for a
limited use which is to be specified in detail in the agreement. To avoid
any misunderstanding on this score, the agreement should not use terms
like 'Licence' and 'Licence fee', but only 'permission' and 'way leave
charges'. The agreement should also clearly stipulate that the Railway
Administration retains full rights to enter upon, pass through or use the
land, at any time, without any notice to the party. In the even of the way
leave facility being discontinued with, the Railway will neither be liable to
pay any compensation or reimburse any amount to the party, nor to
provide any alternative arrangement for access, etc. In such a case, any
installations like underground pipelines, etc. put up by the party are
liable to be removed/shifted by the party at its own cost.
6. The following rates may be levied for way leave
facilities/easement rights on railway land:-
I. a) Passage/pathway on/across One time recovery of Rs. 6400/-
railway land (up to im. Wide) for (Way leave agreement for 35 years
pedestrians, cyclists etc. renewable for another 35 years)
b) Water pipeline xing for One time recovery of Rs. 12800/-
cultivation by individual farmers. (Way leave agreement for 35 years
renewable for another 35 years)
c) Electric lines xing for individual -do-
houses shops, etc. (both
underground and overhead)
d) Water/sewage pipelines xings for -do-
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individual upto 300 mm dia
e) Electrical crossings by State -do-
Electricity Boards & Central
Agencies
f) In case of ROB/RUB which are Rs. 6000/- p.a. upto two lane road
undertaken on deposit terms and crossing two tracks and Rs.
do not involve closure of level 12,000/- p.a. in case the Bridge is
crossing------for the portion of wider than two lane and/or
ROB/RUB lying over/below the crossing more than two tracks.
Railway track as the case may be,
and also new level crossings.
II. a) Passage/road for vehicles, 6% of the market value of land p.a.
scooters etc. (i.e. between 1m. to subject to a minimum of Rs.
3m. wide) by individuals, housing 5000/- p.a.
societies, private firms,
organisations etc.
b) Public roads by local 6% of the market value of land p.a.
bodies/State Govt./Govt. & subject to a minimum of Rs.
Autonomous bodies, 10000/- p.a.
charitable/welfare organisations
c) Underground -do-
water/sewage/effluent pipelines.
d) Underground/overhead electrical -do-
crossing other than covered under
1(c) above, and other than for
Cable TV/OFC.
III. a) Open drains and overground 10% of the market value of land
water/sewage/oil/gas/effluents p.a. subject to a minimum of Rs.
pipelines by private parties 20000/- p.a.
(including Public Sector
Undertakings)
b) Underground Oil/gas/pipelines -do-
IV. Underground/overhead cables 6% of the market value of land per
and alignments including track annum subject to a minimum of
crossings in favour of Department Rs. 10,000/- per annum per
of Telecommunications/Bharat crossing.
Sanchar Nigam
Limited/Mahanagar Telephone
Nigam Limited/Videsh Sanchar
Nigam Limited. This includes laying
of Optic Fibre Cable (OFC)
Note - (i) In cases of I(a) to (e), and II(a), the length of land involved
normally should not exceed 50m.
(ii) In case of OFC crossings, all the terms and conditions, and
broad guidelines specified in Board's policy circular No.
2001/LML/24/20, dated 18.10.2001 as amended from time to
time, would be applicable.
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7. Openings of any kind into Railway land/air space should not be
permitted. This includes drops and sprouts from buildings, supports
for buildings, wires, poles and other such needs of permanent nature.
8. Any proposal for passage/roads for width more than 3 m.
should be treated under licensing as per extant circulars on the subject
of licensing.
9. For calculating these charges, in the case of Electrical crossings,
the width of land may be decided in consultation with Divisional
Electrical Engineer locally.
10. In case of any crossing, minimum width of land is to be taken
as 1m for the purpose of assessment of way leave charges.
11. Regarding facilities specified in Paras 6.I(f), 6.II and 6.III, it has
been decided that these charges shall be payable in advance in block of
10 years. Discounting of future cash inflows at prevailing interest rates
announced by RBI for Govt. Securities would be permissible. While
calculating the advance equivalent to 10 years annual charges, annual
increase of 7% in land value would be assumed. Adjustments needed
because of variation vis-à-vis actual increase as per rates notified by local
development authority or as obtained from District Collector, would be
carried out at the time of payment of the installment of way leave charges
for the next 10 years.
12. In all the above cases of way leave facilities (except
ROBs/RUBs, and underground pipelines), no construction (whether
permanent, quasi permanent or temporary), other than a kuchcha or
pucca road in cases the facility is expressly given for the same, is to be
permitted on railway land. If any construction comes up subsequently,
the same should be immediately remove as soon as noticed, and the way
leave facility discontinued with.
13. In view of the large number of cases involved, decision for
granting way leave facilities may be taken by the D.R.M. (without any
further redelegation) in consultation with Divisional Associate Finance.
Way leave facilities involving stretch of railway land more than 100
metres, can be permitted only by the General Manager in consultations
with the FA&CAO.
14. (a) All way leave proposals should be processed by the
Sr.DEN(Co-ord) at the Divisional level, and the Chief Engineer at the
Headquarters level. Way leave facilities should not be granted as a matter
of routine, but only after consideration of each case on merits based on a
site inspection. Special care should be taken to see that the way leave
facility does not in any way impinge on the safety and security of railway
operations and railway property.
(b) Way leave permission in respect of open drainage and
surface/overhead pipelines should be allowed only in unavoidable cases.
In any case, fresh permission for this in favour of private parties should
not be given. All efforts may also be made to have the existing open
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drainage and surface/overhead pipelines replaced by underground
installations at the earliest.
15. In all cases of way leave facility granted, proper agreement
should be executed. The agreement should provide for revision of way
leave charges from time to time in all cases other than the facilities listed
at paras 6.I(a) to (e).
16. Provisions of para 6.I(a) to (e) shall be applied prospectively i.e.
for fresh cases. Cases already decided shall be continued with earlier
provisions. However, one time recovery as per present guidelines can be
applied in old cases too if the other party accords consent to the same.
Fresh agreement needs to be executed in such cases.
17. The calculation of annual increase should be on the basis of
the actual way leave charge and not only the minimum charge specified
in Paras from 6.I(f) to 6.III.
18. In case such proposals envisage crossing of track-in the form of
road, pipelines, etc., the extant rules and procedures relating to safety,
provision of level crossings, pipeline crossings, etc. will govern and the
provisions of this circular would be limited to the use of railway land
only.
19. These instructions will be effective from the date of issue.
20. This issues with the concurrence of the Finance Directorate of
the Ministry of Railways.
21. Hindi version will follow."
Before this Court further proceeds to deal with the points, which
are urged by the respective parties, it would be axiomatic to narrate
certain events happened in relation to the said agreement.
The Railway Authorities conveyed their intention to invoke the
bank guarantee furnished by the petitioner for non-compliance of the
terms and conditions of the said agreement and in fact invoked such
bank guarantee against which the petitioner approached the Court by
filing an arbitration petition and alleged to have obtained an injunction
therein.
As the dispute which arises between the parties cannot be resolved
by the Court because of the existence of Arbitration Clause of the said
agreement, therefore, the party approached to the arbitrator upon
invocation of the Arbitration Clause and it is not in dispute that the
arbitration proceeding is still pending. However, the petitioner thought
that once the dispute over the way leave permission has also been raised,
it was covered under the Arbitration Clause and invoked the same
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inviting the Railways to appoint an Arbitrator to determine such dispute.
An Arbitrator was appointed and a plea was taken by the Railways that
the dispute pertaining to way leave permission is not covered under the
agreement and, therefore, it is outside the ambit and purview of the
arbitration agreement.
The aforesaid fact was brought to the notice of this Court in the
instant writ petition and it was observed by this Court that the Court has
to elect one remedy and cannot continue to avail the same remedy in
simultaneous proceeding.
It was submitted by the petitioner before this Court that he could
not continue with such dispute before the Arbitrator and elect such
dispute to be determined in the instant writ petition. The Court granted
leave to the petitioner to make an application for withdrawal of the
statement of claims filed before the Arbitrator, which in fact had been
done by the petitioner. The Railways took a diametrically opposite stand
before the Arbitrator and resisted the withdrawal of the statement of
claims, but could not succeed, as the Arbitrator allowed such
application; as a result whereof the Arbitrator did not retain seisin over
the said dispute.
The orders/award passed by the Arbitrator was further challenged
by the Railways under Section 34 of the Arbitration and Conciliation Act,
1996. One of the core issues involved in the said application seeking
setting aside of the said order/award is whether such order/award is
amenable to be challenged under the aforesaid provision. The parties
were very conscious over the use of the words "order" and "award" and
therefore, invited this Court not to make any observations touching such
issue at an earlier point of time when the hearing of this writ petition was
postponed because of the pendency of the arbitration proceeding.
Admittedly, the said proceeding has come to an end and it is an accepted
position that the Court below did not interfere with the award/order
passed by the Arbitrator. The resultant effect is that the order allowing
the application for withdrawal of the statement of claim stood finality, as
no further remedy is availed by either of the parties.
The aforesaid fact becomes necessary for the simple reason that
though the issue pertains to way leave permission and various decisions
and/or orders passed by the authorities were not initially the subject
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matter in the instant writ petition, but because of the subsequent events
happened during the currency of the writ petition, such point took a
front seat and the primary relief which the petitioner claimed, in my
opinion, takes a back seat. Both the parties are conscious and aware
that the core issue involved in the instant writ petition pertains not only
to the grant or non-grant of way leave permission but also an ancillary
point as to what would be the charges for such way leave permission.
Before this Court records the submissions advanced by the
petitioner appearing in person and Mr. Chatterjee, the learned advocate
appearing for the Railways, the stand of the Distribution Company
should be highlighted first.
The Distribution Company has in fact taken a neutral stand and
put the responsibilities upon the petitioner as well as the Railways, as
according to them the dispute really centres around between the
aforesaid two persons and has not been pointed out towards them. The
stand appears to be fair for the simple reason that the Distribution
Company was approached by the petitioner for supply of electricity at the
said commercial complex upon fulfillment of other conditions and criteria
required under the statute and the Rules, as the Railway Authorities
showed their unwillingness to supply electricity to the said complex.
This Court does not find any apparent resistance from the Railway
Authorities in approaching the Distribution Company for supply of
electricity at the commercial complex; rather the Railway Authorities also
assisted the petitioner in getting such supply. The difficulties in
providing electricity for such a long stretch were also communicated and
both the petitioner as well as the Railways are aware of the same.
The learned advocate for the Railways says that they are agreeable
to provide electricity to the petitioner provided the way leave permission
is granted by the Railways and the necessary charges are deposited by
the petitioner with them. Apart from the same it is submitted that once
the aforesaid formalities are complied with and the Chief Electrical
Inspector gives his nod or permission to energize the substation installed
by the petitioner at the said complex, there is no difficulty on the part of
the Distribution Company to energize the said substation.
Reverting back to the stands taken by the petitioner as well as the
Railway Board it appears that the petitioner has urged several points
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touching the role of the authority and their powers to impose any
conditions for the way leave permission in the form of deposit of money.
The petitioner says that this was a dream project of the Railway to
commercially exploit the surplus land and invited tender from various
developers and it is all along the project of the Railways and, therefore,
the Railways cannot compel the petitioner to obtain way leave permission
for utilization of their land.
It is further submitted that the terms and conditions of the
agreement would manifest that both the land and the structure shall
remain with the Railways as its property. It is further submitted that the
petitioner has applied its resources for such dream project of the
Railways and if the commercial complex is not catered with the
electricity, it is practically impossible to run the same and, therefore, the
stand of the Railways in this regard is untenable. It is further submitted
that though way leave permission cannot be withheld by the Railways, as
the same is not applicable in view of the special facts, but even if it is
required, the way leave charges should be calculated on the basis of the
said Railway Board Circular dated 27th November, 2001, wherein Clause
I-(e) of para 6 postulates a fixed amount of Rs, 12,800/- and, therefore,
the shelter under Clause II-(b) of para 6 of the said circular is factually
incorrect and decisionally wrong. It is further submitted that once the
Senior Divisional Engineer, Headquarter and Divisional Railway
Manager, Kharagpur granted way leave permission in the year 2008, it is
not open to the authorities to take a rebound and revisit the issue taking
a diametrically opposite decision.
It is thus submitted that the petitioner has been unnecessarily
deprived of his right and has virtually lost all his money invested on the
said complex, as various sub-lessees inducted by him have resiled
because of non-supply of electricity thereat, though the petitioner has to
incur a huge sum for providing electricity through the generator set.
The petitioner further submits that the electricity is within the
periphery of common life, which is the fundamental right enshrined
under the Constitution of India and, therefore, the statutory authorities,
semi-government cannot deny the such right guaranteed therein and
placed reliance upon a judgement of the co-ordinate Bench in case of Sk.
Samsud Doha vs. The West Bengal State Electricity Distribution Company
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Limited & Ors. (W.P. 25482 (W) of 2010 decided on 02.05.2012). The
petitioner further placed reliance upon the said judgement for another
proposition that the regulations and rules framed by the appropriate
Government should be in conformity with or in tune with the spirit of the
principal Act and cannot be in derogation thereof. On the identical plea
another decision of the Apex Court in case of State of Tamil Nadu & Anr.
vs. P. Krishnamurthy & Ors. reported in AIR 2006 SC 1622 is placed for
the proposition that the powers delegated by the statute is limited by its
stand and subordinate to its object and, therefore, subordinate
legislation cannot override the substantive provisions of the Act. The
reliance is further placed upon a Division Bench judgement of this Court
in case of Sailendra Nath Pal & Anr. vs. Neelachal Housing Co-operative
Colony Society Limited & Ors. (A.P.O. 252 of 1996, decided on
19.06.2008), wherein it is held that right to enjoy the electricity is an
inchoate and indefeasible right and if requires to be catered over the land
of another person, the prospective consumer has such easementary right
by necessity and, therefore, the statutory authorities cannot deny such
right taking shelter under the way leave permission. In the aforesaid
perspective it is submitted by the petitioner that none of the provisions in
the parent Act, i.e. Electricity Act, 2003, postulates the mandatory
requirement of way leave permission and, therefore, the subordinate or
delegated legislation in the form of regulations and rules cannot apply
being opposed to the spirit, object and purpose of the Principal Act.
Mr. Chatterjee, learned advocate appearing for the Railways,
submits that the Railway's land cannot be brought within the territorial
operation of the Distribution Company and, therefore, they are guided by
their own circulars/resolutions/guidelines. It is further submitted that
there was no finality to a decision over the amount required to be
deposited for way leave permission and if subsequently the authorities
have taken a decision to calculate the charges for way leave permission
under Clause II-(b) of paragraph 6 of the said Railway Board Circular,
such decision impliedly supersede of the earlier decision of the
authorities.
Mr. Chatterjee audaciously submits that the Railways never
opposed the grant of way leave permission and in fact granted such
permission subject to the payment of charges as determined or leviable
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in the facts of the instant case and unless the petitioner deposits such
amount, the way leave permission cannot be granted. In other words, Mr.
Chatterjee submits that once the Railway Board Circular envisages the
quantification of the charges for way leave permission, it leads to a
conclusion that way leave permission is necessary and, therefore, the
stand of the petitioner that it is not required is untenable.
Mr. Chatterjee further submits that for the purpose of catering the
supply of electricity at the complex large tract of land had in fact been
used and utilized for setting up the poles and, therefore, there is no
infirmity or illegality in demanding the charges for such way leave
permission. Mr. Chatterjee thus submits that the petitioner himself
admitted such position while addressing letters to different officials of the
Railways requesting to grant way leave permission and, therefore, it is
too late in a day to argue that no way leave permission is required.
According to Mr. Chatterjee, though the constructions have been allowed
to be made on a railway land as per the then policy decision for
commercial exploitation through developer, but if any land beyond the
allotted land is used and utilized for the purpose of construction of a
structure even for the purpose of providing electricity thereat, the way
leave permission is mandatory. Mr. Chatterjee relies upon the provisions
under Section 173 of the Electricity Act, 2003 to support his contention
that the provisions contained thereat or the regulations framed
thereunder have no manner of applicability over the Railways, who are
governed by the Railways Act in case of inconsistency or repugnancy. He
refers to note appended to paragraph 6 of the Railway Board Circular
dated 27th November, 2001 that Clause I-(e) of the said paragraph is not
applicable, as it is an admitted position that the length of the land
involved exceeds 50 metres. According to him the instant matter comes
within the ambit of Clause II-(b) providing determination of charges for
way leave permission to be 6% of the market value of the land with the
minimum ceiling limit of Rs.10,000/- per annum. He further refers
Clause 15 of the Railway Board Circular and submits that such way
leave charges is amenable to be revised from time to time and, therefore,
the calculation of way leave charges taking account the revisions effected
periodically does not require any interference by this Court.
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Last but not the least Mr. Chatterjee submits that paragraph 13 of
the said Railway Board Circular provides the decision to be taken by the
General Manager in consultation with Financial Advisory and Chief
Accounts Officer (FA&CAO) if the way leave facilities involves stretch of
railway land more than 100 metres.
In reply to the same the petitioner says that no way leave
permission is necessary for Multifunctional Complex erected and
constructed over the railway land, which can be seen from the Railway
Board Circular dated 28th December, 2010. He further submits that the
nature of the structure erected in terms of the said agreement would
show that the said complex is in effect MFC catering all the facilities and
amenities required therefor and, therefore, the decision to levy charges
for way leave permission or requirement to obtain way leave permission
is unwarranted.
It is submitted that entire work pertaining to energizing the
substation installed at the said complex has already been done, but
because of such disputes having unnecessarily raised by the Railways
Authorities the petitioner is deprived of his right to get electricity and has
been unnecessarily dragged in multiple proceedings.
Since the said point was taken before this matter was fixed for
delivery of judgment in open Court today, an opportunity was given to
the Railways to produce relevant documents. Today, Mr. Chatterjee in
joining over such issue submits that the concept of Multi Functional
Complex was the dream of the then Railway Minister at the time of
presentation of the Railway Budget, 2009 and sites were also indicated in
the said budget which does not include the present site. Apart from the
same, Mr. Chatterjee says that there was no concept of MFC prior to
2009 and therefore the petitioner cannot take advantage of the same, as
such concept saw the light of the day for the first time in 2009.
Both the petitioner and the Railways are not ad idem on the
notified sites. According to Mr. Chatterjee, the construction of MFC were
restricted to 50 sites, which is countenanced by the petitioner by
producing the documents showing that it has been allowed for more than
100 sites. The petitioner further drew attention of the Court to some of
the sites shown in the list and submitted before this Court that the
Kharagpur Division was also included therein and, therefore, the
16
complex which the petitioner has been entrusted to make at the railways'
surplus land is in fact a MFC.
As indicted above, initially the petitioner prayed for a relief in the
form of a direction upon the Distribution Company to supply electricity
without further delay and also upon the Railway Authorities to grant way
leave permission upon according approval for installation of the poles.
During the currency of the instant writ petition, it was informed to the
Court that a dispute has arisen over the charges levied for way leave
permission and the petitioner has invoked the arbitration clause treating
such dispute within the horizon of the said arbitration agreement and,
therefore, cannot be permitted to agitate such point in the instant writ
petition.
The Court invited the petitioner to exercise an option of election
and the petitioner conveyed his intention not to proceed with the
arbitration so far as the way leave disputes are concerned and a leave
was sought to withdraw the statement of claims filed before the
Arbitrator. It is not in dispute that the Arbitrator has accepted the stand
of the petitioner and the orders passed in respect thereof now has
attained finality. This Court, therefore, feels that once the Court has
invited the petitioner to exercise an option of election then the entire
issue pertaining to way leave permission impliedly becomes a subject
matter of dispute in the instant writ petition and becomes inevitable to
be decided and / or determined herein.
It is more or less settled that if the principal relief becomes
inappropriate because of the subsequent events, there is no fetter on the
part of the Court to mould the reliefs and set at rest such disputes. One
has to trace the genesis of the way leave permission and its meaning and
purpose both contextually and objectively. The concept of way leave
permission is conspicuously absent in the Electricity Act, 2003. The birth
of the said concept is through the regulation framed by the appropriate
authority / government in exercise of Regulations / Rule making powers
provided under the said Act. By Notification number 46/WBERC dated
31st May, 2010 for the first time the necessity of way leave permission
was introduced in paragraph 3.2.1(c). The aforesaid paragraph is
reproduced as under: -
17
"3.2.1 No new connection shall be given unless the following
document(s) is/are submitted by the intending consumer
with the application in the form given in Annexure-A,
completed in every respect, where applicable.
(a) ..........................
(b) ..........................
(c) Way leave permission in the specified format in Form-
1."
The form prescribed under the said paragraph provides 'no objection' from the owner of another land if the service line passes over / along / across/ under the said premises. It is thus manifest from the said Regulation as well as the prescribed form that in the event the service line passes over, under, along or across the land of another person, 'no objection' is necessary, which necessarily implies that in other eventuality it is not. The intention and the object underlying the incorporation of the aforesaid provision are apparent that if the land of another person is used and required for the purpose of laying the service line, the permission becomes necessary. The further question, which arises, is in the event no permission is granted by the owner of the other land, whether a prospective / intending consumer would remain deprived of the electricity throughout.
An argument is advanced by the petitioner that incorporation of any additional requirement de hors the regulation making powers enshrined in the principal Act. Such delegated / subordinate legislature cannot override or negate the substantive provision of the principal Act.
There is no hesitation in my mind that the subordinate legislation / delegated legislation if contravenes to the provision of the principal Act or repugnant thereto, it is liable to be struck down. The fundamental principles of the aforesaid proposition of law is that the subordinate legislation sees the light and traces its source from the provisions contained in the principlal Act and, therefore, cannot be inconsistent and / or repugnant to any of the provisions of the principal Act. The aforesaid regulation was made in exercise of the powers conferred by sub Section 1 of Clauses (za) and (zb) of sub Section 2 of Section 181 read with sub Section 1 of Section 57 and sub Section 1 of Section 59 of the Electricity 18 Act, 2003. Sub Section 1 of Section 57, which provides that an appropriate commission after consultation with the licensees and the persons likely to be affected may specify the standards of performance of the licensee or a class of licensees; whereas sub Section 1 of Section 59 of the Act contains exhaustive provision relating to information with respect to levels of performance.
Sub Section 1 of Section 181 confers power upon the State Commission to make Regulation consistent with the Act and the Rules providing for all or any of the matters incorporated in sub Section 2 thereof. Clauses (za) and (zb) of sub Section 2 of Section 181 confers power upon the State Commission to make Regulation relating to standards of performance under sub Section 1 of Section 57 and the period within which the information is to be furnished by the licensee under sub Section 1 of Section 59 of the said Act. Since there is a Regulation making power in the said Act itself and sub Section 1 of Section 181 of the Act clearly indicates the legislative intent that such Regulation should not be inconsistent with the principal Act and the Rules framed thereunder, it cannot be said at this juncture that such Regulation is beyond the competence of the State Commission, subject however, that any of the provisions does not offend to the provisions of the Act and the Rules framed thereunder.
As indicated above, neither there is any conformant nor any restriction being put in the principal Act on the way leave concept and, therefore, incorporation of such concept in the Regulation for the first time cannot be branded as being inconsistent and repugnant to the provisions of the Act or the Rules framed thereunder. The way leave permission becomes necessary, if the property of the another is being used and utilized for laying the service line so that such supply is made uninterrupted and for all time to come. There is no provision in the Regulation itself providing the remedy to a prospective consumer as well as licensee / distribution company to take any measures against the persons, who refused to provide the way leave permission. However, this Court finds that the Central Government while framing the Works of Licensee Rules, 2006 have provided the remedies to the Distribution Company / licensee in the event of any obstruction or resistance offered by any person while carrying out the works or laying the supply lines 19 over or under any land of the building. The Proviso appended to Clause
(b) of sub Rule 1 of Rule 3 of the said Rules requires an application to be made before the District Magistrate or the Commissioner of Police or the Officer authorized for removal and / or alteration of such work and in the event it is found by the aforesaid authority that no removal or alteration can be granted, it can fix an amount of compensation or annual rent or of both to be paid to such owner or the occupier. In spite of the aforesaid Rules being incorporated therein sub Rule 4 of the said Rule postulates that it would not stand in the way of the licensee or the Distribution Company to invoke the powers conferred under Section 164 of the Electricity Act, 2003.
Some light can be thrown on the concept of "way leave" from the circular dated 27th November 2001 of the Railway Board. Paragraph 2 of the said circular clearly manifest that by virtue of Sections 16 and 17 of the Railways Act, 1989 the power is conferred upon the Railways to make and maintain specified works for the accommodation of the owners and occupiers of the lands adjoining the railway for the purpose of making good any interruptions to the use of the lands through which the railway is made.
What can be seen therefrom that the way leave permission becomes necessary, if the railway property is being used for catering essential supplies like water, sewerage, electricity, telecommunication, either by laying underground or overhead. The point, which boils down to another question, whether the way leave permission would still be necessary, if the other land of the railways are used to cater the supply of electricity to a portion of the railway land intended to be developed by the private individuals. The aforesaid concept assumes importance when the Distribution Company raised a point that unless the way leave permission is obtained from the railways, they would not be able to commission or execute the work for electrification of the sub-station installed in the portion of the railway land. The aforesaid communication was made to the petitioner, who, in turn thereof, approached the Railway Board for grant of necessary way leave permission.
In a letter dated 19th December 2007 issued by the Senior DEE(G), Kharagpur to the Divisional Manage, Kharagpur (O & M) Division indicating that by virtue of the Railway Board's circular dated 27th 20 November 2001 different rates for way leave charges are provided for the private consumers and the State Electricity Board or the Central Agencies and wanted to know whether the proposed transmission line shall be an asset of the Distribution Company or not. It was further indicated that if it is a property of the Distribution Company, then the application for way leave permission is required to be initiated from the Distributions Company's end. The Distribution Company responded to the said queries by causing a letter dated 22nd December 2007 that as per the agreement between the Distribution Company and the petitioner the service line and the apparatus shall remain the property of and be maintained by the Board only, though the consumer has paid for it.
Since a fixed amount of Rs. 12,800/- in terms of para 6 clause I(e) is required to be levied, the Distribution Company showed their willingness to deposit the same.
On such conspectus the matter was again placed before the different authorities of the railways and as stated herein above, the Divisional Engineer Headquarter, Senior Divisional Headquarter and Senior Divisional Engineer (Electrical) as well as the Deputy Regional Manager opined that the fixed amount is required to be levied as per para 6 I(e) of the said Railway Board's circular. The aforesaid notice as well as the letters subsequently issued by the Railway Authorities are indicative of the fact that the way leave permission was, in fact, granted provided fixed charges under para 6 I(e) of the said Railway Board's circular is deposited. Subsequently, there was a change of opinion and the matter, which appears to have been set at rest, was revisited and/or reopened and the point of dissent appeared to be over the quantum of way leave charges. Subsequently, the Railway Board invoked para 6 clause II(d) of the Railway Board's circular, as the length of land involved is of more than 50 metres. This time the Railway Authorities calculated the amount for grant of way leave permission at Rs. 2.08 crores taking into account 6% of the market price of the land, the estimated cost for execution of the work and the other charges including the supervision charges.
The dispute initially hinged upon a point whether the fixed amount of Rs. 12,800/- to be calculated in terms of para 6 I(e) of the said Railway Board's circular or it should be calculated at Rs. 2.08 crores on the basis 21 of para 6 II(d) was primary one, which would be reflected from various correspondences exchanged in this regard.
However, for the first time, in the instant writ petition the petitioner raises a legal point whether the way leave permission is at all necessary for execution of work involving the railway's land for the purpose of catering the supply of electricity in a portion thereof. Though the petitioner says that the letters, agreement and the conduct of the railway as well as the petitioner are the clear indicative of the facts that the land and the structure shall always remain the property of the railways, but my perusal to the bid offer as well as the conditions enshrined therein and a subsequent letter signifying various clauses creates an impression that the structure standing thereupon shall vests with the Railway Authorities on expiration of the term or earliler termination thereof, the petitioner was given an absolute right to create sub-lessees, sub-licensees and accept the premium without reference to the railways during the currency of the said licence agreement.
Be that as it may, there is no hesitation in my mind that the plot of land and the structure built thereupon would remain the property of the Railways; be it in presentee or in future or on happening on any event. Paragraph 2 of the Railway Board circular dated 27th November 2001, which, in my opinion, is the foundation of the aforesaid circular, manifestly indicates the mind of the authority that way leave permission is necessary when the railway land is used for the purpose of such facilities or amenities, which are essential to the adjoining owner.
I would have find no reason not to accept the aforesaid contention of the railways that the way leave permission can only be necessary when an adjoining owner avails amenities and facilities like water, electricity, sewerage over or under the railway land, but in view of the stand taken by the petitioner and approaching the railways for grant of way leave permission, this Court feels it would not be proper and justified to enter into such arena at this stage.
Though the petitioner says that he was more interested in completing his obligation under the licence agreement as a huge amount was already invested in the said project, yet this Court finds once such approach was made and the authorities acted thereupon, it would be too late in a day to take a rebound. However, this Court cannot overlook 22 clause 13 of the said Railway Board circular, which mandates that if the way leave facilities involving stretch of railway land of more than 100 metres, it can be permitted only by the General Manager in consultation with the Financial Advisor and Chief Account Officer (FA&CAO).
In course of hearing, the petitioner relies upon another circular of the Railway Board dated 1st September 2014 where the said clause 13 was modified in view of the economic growth and infrastructure development in the country and a large number of cases being received for granting of way leave facilities and are pending before the concerned officer. The said clause is modified as under:
"In view of the large number of cases involved, decision for granting way leave facilities may be taken by the DRM (without any further redelegation) in consultation with Divisional Associates Finance. However, granting of way leave for unreasonably long stretch over/across railway land should be avoided and particularly for oblique crossings unavoidable and bare minimum railway land parallel to track should be used."
In view of the subsequent circular modifying clause 13, the decision for granting way leave facilities should be taken up by the Divisional Railway Manager in consultation with the Divisional Associates Finance and not by the General Manager in consultation with the Financial Advisor and Chief Account Officer.
In the instant case, though the Divisional Railway Manager initially agreed and opined that the fixed charges under para 6 I(e) of the said Railway Board's circular is leviable for way leave permission, yet subsequently there was a change of opinion, may be at the behest of the superiors or the other officers, but the matter was never placed before the General Manager.
Since the Divisional Railway Manager has now been vested with the authority to take a decision, this Court, therefore, feels that a fresh decision should be taken by the said authority on the matter without being swayed and/or influenced by the earlier decision taken by them.
It is still open to the said authority to consider whether any way leave permission is at all necessary for installation of the poles over the 23 railway land to cater the supply of electricity at the commercial complex constructed upon the railway land itself. Since such point was urged in course of an argument and by way of a supplementary documents filed in the writ petition, this Court, therefore, feels that the authority must be invited to take a decision first.
The Divisional Railway Manager, Kharagpur Division is directed to take a decision in the light of the observations recorded herein above within three weeks from the date of communication of this order after affording an opportunity of hearing to the petitioner and other interested persons and it goes without saying that such decision shall be communicated both to the petitioner as well as the Distribution Company within a week therefrom.
All consequential steps on the basis of the said decision shall be taken and completed within a reasonable time.
The writ petition is, thus, disposed of.
There shall, however, be no order as to costs.
(Harish Tandon, J.)