Rajasthan High Court - Jodhpur
Kailash Ram vs State Of Rajasthan on 1 September, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 12649/2022
1. Kailash Ram S/o Shri Daya Ram, Aged About 25 Years, R/
o Mali Bera Navora, Khejarla, Tehsil Pipal City, Jodhpur At
Present Village Jeewana, Tehsil Sayala District Jalore,
Rajasthan.
2. Smt. Rekha Devi W/o Shri Kishan Lal, Aged About 36
Years, R/o Village Jeewana, Tehsil Sayala District Jalore,
Rajasthan.
3. Manga Ram S/o Shri Chhoga Ram, Aged About 53 Years,
R/o Village Manwtra, Tehsil Sayala District Jalore, At
Present Village Jeewana, Tehsil Sayala, District Jalore,
Rajasthan.
4. Megh Singh S/o Shri Bhur Singh, Aged About 45 Years, R/
o Village Surana, Tehsil Sayala District Jalore, Rajasthan.
5. Deepa Ram S/o Shri Jeena Ram, Aged About 35 Years, R/
o Village Kankhi, Tehsil Siwana, District Barmer,
Rajasthan At Present Village Jeewana, Tehsil Sayala
District Jalore.
6. Kabu Devi W/o Shri Lila Ram, Aged About 35 Years, R/o
Near Govt. Hospital, Jivana, Village Jeewana, Tehsil
Sayala District Jalore, Rajasthan.
7. Naga Ram S/o Shrin Maka Ram, Aged About 65 Years, R/
o Village Padru, Tehsil Siwana, District Barmer, At Present
Village Jeewana, Tehsil Sayala, District Jalore, Rajasthan.
8. Smt. Hiru Devi W/o Shri Sadaram Ji, Aged About 54
Years, R/o Village Jeewana, Tehsil Sayala District Jalore,
Rajasthan
----Petitioners
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Energy, Secretariat, Jaipur.
2. The Rajasthan Rajya Vidhyut Prasaran Nigam Ltd.,
Through Its Managing Director, Jaipur.
3. M/s Navdurga Electroconstruction Pvt. Ltd., Jaipur
Through Its Proprietor, Jaipur Services Through The Office
Of Managing Director, Rajasthan Rajya Vidhyut Prasaran
Nigam Ltd.
----Respondents
For Petitioner(s) : Mr. P.R. Singh Jodha
(Downloaded on 02/09/2022 at 09:12:23 PM)
(2 of 11) [CW-12649/2022]
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR Order 01/09/2022 The petitioners herein have approached this Court through this writ petition under Article 226 of the Constitution of India branding the same to be a Public Interest Litigation writ petition with the following prayers:-
"(1). It is therefore, humbly prayed that this Hon'ble Court may graciously allow the present writ petition and in the interest of justice by an appropriate writ, order or direction the respondents may be restrained from erection of 132 KV supply line from within the residential area of Khasra No.1357 (old) of Village Jeewana, Tehsil Sayala, District Jalore.
(2) That the respondents may further be directed to shift the tower proposed in Khasra No.709 of Village Jeewana, Tehsil Sayala, District Jalore just at a distance of 200 feet in the same land towards the land bearing Khasra No.710. As the same would at all not disturbe the entire alignment of the proposed 132 KV supply line between GSS Khokha to GSS Jeewana."
Shri P.R. Singh Jodha, learned counsel representing the petitioners, vehemently and fervently contended that 132 KV Overhead Electricity Line is being installed through the Khasra No.1332/707, which may cause serious threat to lives of the villagers of Village Jeewana and their livestock and thus, a direction be given to restrain the respondents from erection of the supply line in question and further to change the alignment thereof.
(Downloaded on 02/09/2022 at 09:12:23 PM) (3 of 11) [CW-12649/2022]
We have given our thoughtful consideration to the
submissions advanced by Shri Singh and have gone through the material placed on record.
Suffice it to say that laying of the Overhead Electricity Line is being undertaken by the respondents by taking recourse to the powers conferred under Section 68 read with Section 164 of The Electricity Act, 2003. Shri Jodha, during the course of arguments, candidly conceded that Gazette notification in this regard, has been issued long back and the same is not under challenge in this writ petition. Nevertheless, his fervent contention was that as many villagers' own lands directly underneath the over hung of the questioned supply line, it would pose a great threat to the lives of the petitioners and their likes and so also, to the livestock which grazes on these lands.
We have gone through the various title documents placed on record of the writ petition. It is clearly evident form a bare perusal of these documents that the entire chunk of agricultural land in question was owned by one Prakash Dewasi, who seems to have got it converted into Abadi category and thereafter, divided it into plots, sold the same to various persons between the months of November, 2021 to April, 2022. As the Gazette notification authorizing the laying of the overhead electricity supply line has not been placed on record, it can be safely presumed that all these transactions must have been made after the issuance thereof.
Apparently, thus, the instant writ petition seems to be nothing but a ploy of the land holders to somehow or the other, get the alignment of the Overhead Electricity Line changed.
(Downloaded on 02/09/2022 at 09:12:23 PM)(4 of 11) [CW-12649/2022] This very controversy was considered in detail by Hon'ble the Gujarat High Court in the case of Gujarat State Energy Transmission Corporation Limited Vs. Ratilal Maganji Brahmbhatt (Barot) reported in AIR 2021 CC 1044 and the similar challenge laid by the land holder was repelled in the following manner:-
"58.1 The Part III of the Telegraph Act, 1885, deals with the Power to place "Telegraph Lines and Posts" and there are other provisions in the said Act, applicable to all the properties. As seen from the plethora of cases, the powers conferred on the telegraph authority to place and maintain telegraph lines and towers, are traceable to Sections 10, 11 and 14 of the Act, 1885 and by virtue of Section 164 of the Electricity Act, 2003, it is conferred on any public officer, licensee or any other person engaged in the business of supplying electricity.
58.2 As per Clause (c) to Section 10, the authority can exercise its powers in respect of the property of a local authority only, by obtaining permission of that authority, whereas, no such permission is required in relation to the property of others. Section 10 does not contemplate notice to an owner or occupier of land to show cause against laying of a line and it authorizes the telegraph authority, to place a telegraph line under, over, along or across any immovable property. The proviso makes it clear that the licencee or any other authorised person does not acquire any right, other than that of user of the property. The right conferred on the land owner is only to seek for payment of compensation for any damage sustained by him, by reason of exercise of the powers.
58.3 Section 10 of the Indian Telegraph Act, 1885, confers a legal sanction to a telegraph authority to enter (Downloaded on 02/09/2022 at 09:12:23 PM) (5 of 11) [CW-12649/2022] into any private property, subject to the condition that, while entering into the property and during the course of execution of any work, the telegraph authority is under an obligation to cause as little damage, as possible, and shall pay full compensation to all the persons interested for any damage sustained by them, while exercising the powers conferred under Section 10 of the Act.
58.4. When power of the telegraph authority to enter into any private property, is subject to the conditions to cause as little damage as possible, and when there is a provision for payment of compensation, the question as to whether, the said authority should seek for consent from the owner of the property, or provide him an opportunity of hearing before entering into the property, does not arise. However, the land owner may be informed of the work to be executed.
58.5 Since the powers under Section 10 of the Indian Telegraph Act, 1885, can be exercised without acquiring the land in question, once an order is passed by the appropriate government under Section 164 of the Electricity Act, 2003, the public officer, licensee or any other person engaged in the business of supplying electricity shall be entitled to proceed with the works of placing the electric lines without acquiring the land in question. Usage of the land by the licencee or the authorised person, does not amount to acquisition.
58.6 Section 164 of the Electricity Act, 2003, empowers the State Government to confer, by an order in writing, powers which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to placing of the telegraph lines and posts, on any public officer, licensee or any other person engaged in the business of supplying electricity under that Act, for placing of electrical plants and electric lines, in terms of Section (Downloaded on 02/09/2022 at 09:12:23 PM) (6 of 11) [CW-12649/2022] 2(20), which defines "electric line", as any line which is used for carrying electricity for any purpose and includes--
"(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of carrying electricity;"
58.7 The power conferred on any public officer, licensee or any other person engaged in the business of supplying electricity under the Electricity Act, for the abovesaid purpose, may be subject to such conditions, if any, the Government may deem fit to impose and also subject to the provisions of the Indian Telegraph Act, 1885.
58.8 The authorisation, in terms of Section 164 of the Electricity Act, 2003, read with Section 10 of the Indian Telegraph Act, 1885, authorising the public officer or licencee or any other person engaged in supplying electricity, all the powers of the Telegraph Authority, which includes the power to enter into any private property, subject to the condition that while entering into the property and the public officer or licensee or any other person, authorised under the Act, is under an obligation to cause as little damage as possible, with a guarantee for payment of compensation for the owner of the land or the persons interested.
58.9 Sections 16 and 17 respectively of the Indian Telegraph Act, 1885, do not limit the absolute powers of the telegraph authority to enter into any property for the purpose of enforcement of Section 10 of the Indian Telegraph Act, 1885, read with Section 164 of the Electricity Act, 2003, by which, the public officer or (Downloaded on 02/09/2022 at 09:12:23 PM) (7 of 11) [CW-12649/2022] licensee or any other person engaged in the business of supplying electricity under this Act, is empowered to exercise all the powers, for the purpose of placing electrical plant, line, erection of towers, conductors, poles, etc. 58.10 The intention of the Legislature, is to provide electricity, in terms of Section 43 of the Electricity Act, 2003. When the purpose of the Act, is to provide the basic amenity of electricity to the public at large, and if every objection/resistance has to be entertained under Section 16(1) of the Indian Telegraph Act, 1885, then it would render Section 10 of the Indian Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003, meaningless, thereby, the power conferred on the telegraph authority to enter into any property, subject to causing, as little damage as possible, with an assurance of payment of compensation to the damage, if any, would be redundant.
58.11 If Section 16(1) of the Act, has to be construed, conferring a right on the landowner to seek for an opportunity of prior notice or consent, then the very purpose of Section 10 of the Indian Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003, would be defeated.
58.12 Vis-a-vis Section 185 (2) (b) of the Electricity Act, 2003 and Section 12 (2) of the repealed Indian Electricity Act, 1910, under which the consent of the owner or occupier is essential and on the issue, as to the enforceability of Section 12 of the Act, until the Rules are made under Section 67 of the Electricity Act, 2003, consent of the owner or occupier is necessary, only in the absence of any order, passed under Section 164 of the Electricity Act, 2003.
58.13 Having taken into consideration the relevant provisions of the Indian Telegraph Act, 1885 and (Downloaded on 02/09/2022 at 09:12:23 PM) (8 of 11) [CW-12649/2022] Electricity Act, 2003 and analysis of Section 67 and section 164 of the Electricity Act, 2003, the legal position is that, whenever an order is passed by the appropriate Government, in exercise of powers under Section 164 of the Electricity Act, 2003, for placing of electric lines for the transmission of electricity, conferring upon any public officer, licensee or any other person engaged in the business of supplying electricity any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885, with respect to the placing of telegraphic lines and posts for the purposes of a telegraph established by the Government, such public officer, licensee or any other person engaged in the business of supplying electricity, exercises all the powers, as that of the telegraph authority, under the Indian Telegraph act, 1885.
58.14 However, in the absence of such an order under Section 164 of the Electricity act, 2003, if a licensee i.e., a person who has been granted a licence to transmit electricity or to distribute electricity under the Act, proposes to place electric lines, electric plant or other works necessary for transmission or supply of electricity, Section 67 of the Electricity Act, 2003 comes into operation and consequently, prior consent of the concerned owner or occupier, may be required, under Section 12 (2) of the Indian Electricity Act, 1910.
58.16 Section 16 states that if there is any resistance or obstruction, the District Magistrate may in his discretion, order that the telegraph authority shall be permitted to exercise all the powers. Further, after such an order, a person offering any further resistance is deemed to have committed offence under Section 188 of the Indian Penal Code. Once the technical feasibility of the project, has been approved by the appropriate Government, by issuing an order under Section 164 of the Electricity Act, 2003, no land owner or (Downloaded on 02/09/2022 at 09:12:23 PM) (9 of 11) [CW-12649/2022] person interested can seek for shifting or re- aligning of the route, on the premise that the District Collector-cum-District Magistrate, has the powers to do so. The District Collector has no powers to alter any route or alignment, except to remove the difficulties faced by the licencee or the person authorised, pursuant to the orders issued under Section 164 of the Act.
58.17 If the intention of the Legislature was to seek for consent or permission from every owner and if the right of such owner has to be recognised, in terms of Section 16(1) of the Telegraph Act, due to resistance/obstruction, then the execution of any work or project, would be stopped at every stage. Needless to state that the execution of works, involving erection of towers and connection of overhead lines, is done, only after a detailed field study, by identifying a feasible route of the proposed transmission line, and while selecting suitable corridors, residential areas to be avoided, span length, the angle of deviation, extent of damage, likely to be caused, while erecting towers, maintenance cost of electric lines and towers and other factors, have to be considered. Public interest, in providing electricity to a large section of people and industrial establishments, etc., has to be given weightage over private interest.
58.21 Even if any Court issues any directions to consider the representation of any land owner or person interested, such directions are required to be considered only to the limited extent of payment of compensation, to be given by the licencee or the competent authority and the directions issued, if any, would not empower the District Collector-cum-District Magistrate, to pass (Downloaded on 02/09/2022 at 09:12:23 PM) (10 of 11) [CW-12649/2022] any order, contrary to the orders, passed under Section 164 of the Act.
(Emphasis supplied) 58.28. Having regard to the specialized and technical nature of the task, and the fact that the lines are laid for distribution of electricity, it is the view of this Court that, the Legislature has not provided for any notice or hearing to the public at large, or to the land owners. Therefore, when the appropriate Government authorises a person or any body under the Electricity Act, to exercise the powers of the Telegraph Authority, all the powers under the Indian Telegraph Act, 1885, are meant to be exercised.
59. In the overall view of the matter, we are convinced that no case is made out by the writ applicant for grant of any relief. The writ applicant, at any cost, wants to stall a very important public project by unnecessarily raising one objection or the other. If, ultimately, any damage is caused to his land, he would be adequately compensated in terms of money. However, it is difficult for us to accept the argument of Mr. Dholaria that as there is a statutory obligation cast upon the authority to ensure that minimal damage is caused, his client, as an affected person, has a right to ask the authority to shift the alignment or the route. In our opinion, the interpretation put forward by Mr. Dholariya of the expression "do little damage to property" is not tenable in law. By virtue of the same, Mr. Dholaria cannot contend that as the value of the land may get diminished, the authority should change the alignment and reallocate the route. The expression "do little damage to property", in our opinion, should be construed as to ensure that while laying the pole at the place allocated, minimal damage is caused at the time of erection. It is always open for the writ applicant to (Downloaded on 02/09/2022 at 09:12:23 PM) (11 of 11) [CW-12649/2022] raise dispute with respect to the sufficiency of compensation under Section 16(4) of the Telegraph Act before the District Judge in accordance with law."
We are of the firm view that the opinion expressed in the above judgment is the only acceptable interpretation of the law governing the field.
Since, the electricity transmission line is being laid in furtherance of a notification issued by the appropriate Government in this regard, and as the said notification is not even called into question, this Court would be loathe to question the validity thereof. Furthermore, the alignment of the overhead line having been decided by the competent authority after following the due process of law, there is no reason to interfere therein while exercising the power of judicial review conferred upon this Court by Article 226 of the Constitution of India.
Resultantly, there is no merit in this writ petition, which fails and is dismissed as such.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
47-/Devesh/Prashant/-
(Downloaded on 02/09/2022 at 09:12:23 PM)
Powered by TCPDF (www.tcpdf.org)