Gujarat High Court
Mohammed Razi Ishtiaq Ahmed Mirza vs The State Of Gujarat on 6 May, 2025
NEUTRAL CITATION
C/SCA/1922/2025 ORDER DATED: 06/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1922 of 2025
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MOHAMMED RAZI ISHTIAQ AHMED MIRZA & ORS.
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR ANSHIN H. DESAI SR. COUNSEL with MR MANAN A SHAH(5412) for
the Petitioner(s) No. 1,2,3
MS JYOTI BHATT AGP for the Respondent(s) No. 1,2
MOSON LE EXPARTS(11071) for the Respondent(s) No. 3,4
MR AKSHAT KHARE(5912) for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 06/05/2025
ORAL ORDER
1. By the present Special Civil Application, the petitioners are praying for the following reliefs :-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned orders bearing no.WR-2/PESM/ Grievance-2024-2025/Reply-3985/637and Grievance-2024-25/Reply 3984/638 both date 25.1.2025 passed by respondent no.4 (Annexure-A Colly) as being illegal and bad in law;
(B) Pending the admission, hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the implementation, execution and operation of the impugned orders bearing no.WR-2/PESM/Grievance-2024-25/Reply-3985/637 and Grievance-2024-25/Reply 3984/638 both date 25.1.2025 passed by respondent no.4 (Annexure-A Colly) and restrain the respondents from installing overhead transmission lines and electricity poles and such other related activities on the Subject Lands of the petitioners;
(C) YOUR LORDSHIPS may be pleased to grant such other and further relief as may be deemed fit and proper in the interest of justice;"Page 1 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025
NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined
2. The brief facts in the present case are that the petitioners are the owners of the land bearing survey Nos.187, 189, 190 and 191 situated at Village Kathwada, Taluka Mangrol and the land bearing survey Nos.237, 238, 240 and 267, situated at Village Kosamba, Taluka Mangrol, District Surat, in all admesauring 35000 sq. mtrs. approximately. The petitioners are carrying out agricultural and farming activities on the said lands and are also maintaining milch animals. That, a public notice dated 18.06.2023 came to be issued in the daily newspaper "Divya Bhaskar", Ahmedabad Edition, reflecting the survey numbers of various lands including the lands of the petitioners for laying down 765KV DC Ahmedabad-Navsari High Tension Line. Pursuant to the said public notice, the petitioners made an application to the respondent No.3 herein under the Right to Information Act, seeking information in respect of the route of transmission line. That on 04.12.2023, the respondent No.3 made an application under Section 16 of the Telegraph Act, 1885 to the respondent No.2 raising a grievance that while laying down the transmission line, the farmers are raising objection and are causing hindrance. That on 24.06.2024, a notice came to be issued to the petitioners calling upon them to appear for hearing on 27.06.2024 and to produce certain documents and make an appropriate representation. Another such notice dated 27.06.2024 came to be issued intimating the next date of hearing on 04.07.2024. That the petitioners appeared before the respondent No.2 Collector and submitted the detailed written objection/representation. That by the orders dated 06.09.2024 and 09.12.2024, the respondent No.2 permitted the respondent No.3 to lay down the transmission lines from the subject lands owned by the petitioners, directing that minimum damage be caused to the land holders and also directed to pay the compensation to the petitioners. That on 5/6.12.2024, the Page 2 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined office of the respondent No.3 visited the lands of the petitioners and earmarked the location of the transmission tower. It is also the case that the transmission lines are passing through the middle of the petitioners' lands, thereby rendering the entire lands of the petitioners unusable. Aggrieved by the orders dated 06.09.2024 and 09.12.2024, the petitioners filed the Special Civil Application Nos. 17270 of 2024 and 17149 of 2024 in this Court since the petitioners were seeking realignment of route so as to cause minimum damage. This Court, vide order dated 20.12.2024, was pleased to dispose of the said petitions with a direction to the petitioners to make an appropriate representation for realignment of transmission line, which was to be considered and evaluated by the Internal Technical Committee of the respondent No.4 by passing appropriate order on such representation. By the impugned communication dated 25.01.2025, the Technical Committee of the respondent No.4 has rejected the representation of the petitioner dated 02.01.2025. Aggrieved, the petitioners have preferred the present Writ Petition.
3. The learned senior counsel Mr. Anshin Desai appearing for the petitioners submits that the action of the respondent authorities is in disregard to due process and fundamental rights of the petitioners by attempting to install the transmission tower on the petitioners' lands forcibly. The learned senior counsel submits that no notice was given to the petitioners before attempting to install the transmission tower. He submits that the realignment proposal given by the petitioners was also decided without giving hearing to the petitioners. He submits that the said action is arbitrary, illegal and in violation of the principles of natural justice. The learned senior counsel submits that the action of the respondent authority is also in violation of Article 300A of the Constitution of India, which is Page 3 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined a constitutional right. He submits that Article 300A mandates that no person shall be deprived of the property except by the authority of law. He submits that unilateral and coercive action of the respondents amounts to unauthorized and unlawful deprivation of the petitioners' right to the property. He submits that the impugned communication makes out a reference to so-called visit made by the Internal Technical Committee at the site proposed by the petitioners on 21.01.2025. He submits that no prior notice was given to the petitioners by the Internal Technical Committee while visiting the said site and the petitioners were never called for consultation for consideration of their realignment proposal. He submits that in fact, the Internal Technical Committee or its representative has not visited the site at all. The learned senior counsel submits that the rejection of the representation of the petitioners is without any basis. The learned senior counsel submits that the petitioners had engaged a cartographer and accordingly, had submitted the realignment plan, which was technically feasible and the said proposal submitted by the petitioner was after taking into consideration all the factors. He submits that the transmission line proposed by the respondent Nos.3 and 4 had also been designed by the cartographer. He submits that the realignment proposal of the petitioners was technically sound, which was required for such realignment. The learned senior counsel submits that all these factors have neither been taken into consideration, nor discussed in the impugned communication. He submits that the impugned communication causes great hardship to the land of the petitioners. He submits that the impugned communication is non-speaking and non-reasoned as it does not give the reason as to why the realignment of transmission line as proposed by the petitioners is not feasible. The learned senior counsel submits that since the transmission lines are passing through the lands of the petitioners, Page 4 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined the petitioners will not be able to do agricultural activities any further. Further, the valuation of the land would also become Nil. He submits that by the proposed route of transmission line, the entire land of the petitioners is rendered unusable. The learned senior counsel has placed reliance on the decision of the Hon'ble Apex Court in the case of Kolkata Municipal Corporation and anr. vs. Bimal Kumar Shah and ors. [(2024) 10 SCC 533]. He submits that as per the said reported decision, the authority is required to follow due procedure of law if it proposes to acquire any land for acquisition. He submits that the present action of the respondent authority is akin to acquisition and therefore, no procedure known to law has been followed by the respondents before laying down the transmission line. The learned senior counsel submits that the action of laying down the transmission line amounts to acquisition of land in as much as the land beneath the transmission line is affected by electromagnetic field and is dangerous for human existence. Further, no agricultural activities can be undertaken on such land. The learned senior counsel submits that as there is acquisition, the affected land owners should be compensated appropriately. He submits that even though the towers are placed in the middle of the land, the transmission lines are going through the whole land of the petitioners. The learned senior counsel submits that the land adjacent to the land of the petitioners is waste land and the said land could have been utilized for erection of transmission tower. He submits that the action of the respondent authority is in contravention of its obligation to ensure minimum damage to be caused while laying down the overhead transmission lines. He submits that the compensation being offered to the petitioners under the Telegraph Act is also inadequate compared to the damage caused due to passing of the transmission line over the land as the petitioners will permanently lose the utility of their lands Page 5 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined due to installation of transmission tower. He, therefore, submits that the respondent authorities have not taken into consideration all these factors while rejecting the representation of the petitioners for realignment of the route of transmission line. The learned senior counsel finally submits that the present petition be allowed.
4. Per contra, the learned counsel Mr. Akshat Khare appearing for the respondent Nos.3 and 4 submits that the Power Grid Corporation of India is a Central Public Sector Enterprise and India's largest Electric Power Transmission Utility. He submits that the Indian Power System has moved towards "One Nation One Grid"
wherein power generated from all sources is brought into one network and is supplied to the end users in a most effective and efficient manner ensuring overall economic development of the country. He submits that under the said system, the transmission line is being laid at Khavda being potential RE zone and connecting it to rest parts of the country. The learned counsel submits that the whole process of transmission line construction is for public purpose and will be beneficial in the State of Gujarat in particular. The learned senior counsel submits that the respondent No.3 has only a user right to enter into the lands of the petitioners for laying of overhead transmission line approximately 15 meters above the land and for the said purpose, the petitioners and other affected persons are getting sufficient compensation for the damage caused due to construction of the said transmission lines and also for the diminution value of the land. No possession of the land will be taken by the respondent No.3 and the ownership and possession of the land will always remain vested with the petitioners/land owners. The learned counsel submits that prior notice for laying down the transmission lines was given in the newspaper intimating the prospective affected land owners across various villages. He submits that the respondent Nos.3 and 4 have followed due Page 6 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined procedure as prescribed under the Telegraph Act, 1885 as well as Indian Electricity Act, 2003. He submits that even after construction of transmission tower, the Right of Way area remains in possession of the petitioners for utilization and the same should not hinder any future maintenance work and must not obstruct the overhead transmission line as per the CEA Guidelines. He submits that the petitioners are very well aware of utilization of the land in question. The learned counsel submits that while fixing the transmission line route, the most techno economically feasible route is chosen causing least damage. The said transmission line would not have any impact on human beings, animals, plants etc. beyond the statutory clearance/norms. He submits that the petitioners can undertake all activities which are permitted on the said lands. The learned senior counsel submits that the representation of the petitioners was considered by the appropriate authority, i. e. the technical team. After taking into account all the aspects, it was decided that the proposal of the petitioners is not feasible inasmuch as shifting of towers will change the alignment of the entire proposed route and will ultimately result in demolishig and recasting various tower foundations at various locations for which works have already been completed. He submits that the transmission line is crossing the subject land which is between tower location Nos.176/0 and 177/0 and the said route has been finalized due to crossing of National Highway No.48. He submits that overall minimum distance has to be maintained between various towers for stability of transmission lines. He submits that the realignment route proposed by the petitioners will have cascading effect on preceding and succeeding crossing of rail, road and other existing transmission lines. He submits that the proposed route is in direct breach of statutory safety technical requirement on overall transmission route. He submits that taking into consideration the overall interest Page 7 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined of safety of subject transmission line and consequent to cascading effect of proposal, the proposal of the petitioners is declined by the Internal Technical Committee. He, therefore, submits that after due consideration and taking into account all the technical factors, the realignment proposal of transmission route has been rejected by the impugned communication. He submits that no interference is called for since the issue is highly technical in nature and cannot be assessed without technical expertise. He finally submits that the request for shifting the transmission line from the land owned by the petitioners is mere suggestion without having any technical merit and is made only to achieve personal commercial gain.
5. Heard the learned counsels for the parties, considered the submissions and perused the documents on record.
6. In the present case, the transmission tower is being erected on the lands of the petitioners and the transmission line forms part of Ahmedabad - South Gujarat/Navsari (new) 765 KV DC Transmission Line. Section 10 of the Indian Telegraph Act, 1885 authorizes the telegraph authority to place and maintain the telegraph lines under, over, along or across and posts in or upon any immovable property. Section 164 of the Indian Electricity Act enables the provisions of the Indian Telegraph Act to be applicable to the Electricity Authority for laying of the overhead transmission line. The Central Electricity Authority, in exercise of powers under Section 164 of the Electricity Act, has conferred the powers of the Telegraph Authority to the respondent No.3 for the purpose of the said project. A copy of the said approval under Section 164 of the Electricity Act and the Gazette Notification has been placed on record. Therefore, the respondent No.3 has a "Right of Way" (ROW) to enter into the petitioners' land for laying of transmission line. No acquisition of land is involved in the process and during the Page 8 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined construction activities, if any damage is caused to the trees/crops/structure, then the transmission licensee is liable to pay actual compensation as per the assessment done by the Revenue Department. Pursuant thereto, the respondent No.3 had also issued a notice to the petitioners intimating them before entering into their land for the work of transmission tower. As the petitioners herein objected to the work undertaken by the respondent No.3, an application was filed under Section 16(1) of the Telegraph Act before the learned District Magistrate, Surat. The petitioners herein were issued notice and they raised their objections to the application of the respondent No.3. By the order dated 06.09.2024, the learned District Magistrate has rejected the objections of the petitioners and permitted the respondent No.3 for laying the transmission lines.
7. This Court had granted opportunity to the petitioners to make an appropriate representation for realignment of the route of transmission line to the competent authority of the respondent No.3. The competent authority has given a negative opinion since it would involve major change in the alignment as proposed by the petitioners and it will change major alignment of the entire line resulting in demolition and recasting of various towers' foundation at various locations, which are already completed. Further, the respondent No.3 has to comply with the Rule 87(3) & (6) of the Indian Electricity Rules, 1956 which mandate the minimum height clearance between crossing lines and also mandate minimum not less than 60 degree angle crossing between two power lines. The realignment, as proposed by the petitioners, will result in violation of permissible angle of deviation at the preceding and succeeding towers. Further, the transmission line, which is passing through the land of the petitioners requires a clear corridor of 67 meters on either side from the center of the transmission line and the land Page 9 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined below the same can be utilized. The said transmission line is purported not to have any impact on human beings, animals, plants etc. beyond the statutory clearance/norms. Therefore, in the given circumstances, the action of the respondent No.3 in not accepting the proposal of the petitioners to shift the transmission line is a considered decision in view of the facts noted and the reasons given by the respondent No.3 to the representation of the petitioners by communication dated 25.01.2025.
8. The learned senior counsel appearing for the petitioners has submitted that the impugned communication has been issued without any actual survey on the site in question and that the respondent Nos.3 and 4 have neither given any hearing to the petitioners, nor visited the land proposed for realignment of route. By way of additional affidavit dated 05.05.2025, the respondent Nos. 3 and 4 have placed on record the details in respect of the action taken by the Internal Technical Committee of the respondent Nos.3 and 4 while considering the proposal of the petitioners for realignment of the transmission route. The said affidavit details out how the proposal of the petitioners has been dealt with including visit to the new tower site as proposed by the petitioners in their proposal. This Court is fully satisfied that the Internal Technical Committee of the respondent Nos.3 and 4 has duly applied its mind to the realignment of the route proposal given by the petitioners. The impugned communication has been issued rejecting the proposal after due consideration of all the aspects. The contention raised by the learned senior counsel for the petitioners in respect of non-consideration of proposal, non-visit of technical committee members as well as mechanical rejection of the proposal of the petitioners is liable to be rejected in view of the additional affidavit dated 05.05.2025.
Page 10 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined 9. This Court in the case of Gujarat State Energy Transmission Corporation Limited vs. Ratilal Maganji
Brahmbhatt (Barot) [2020(4) GLR 2642], has held as follows:-
"58. The final conclusions are as under:-
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 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, Page 11 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined 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 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 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, Page 12 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined 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 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, Page 13 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined may be required, under Section 12 (2) of the Indian Electricity Act, 1910.
58.15 The provisions of the Works of Licensees Rules, 2006 made under Section 67 (2) of the Electricity Act, 2003 are in pari materia to Section 12 of the repealed Indian Electricity Act, 1910. The Works of Licensees Rules, 2006 are applicable, only in a case, where the works have been taken up by the licensee, under Section 67 (1) of the Electricity Act, 2003. But Section 67 (1) of the Electricity Act, 2003, as well as the rules made under Section 67 (2) would govern the field, only in the absence of an order, under Section 164 of the Electricity Act, 2003.
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 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.
58.18 If the authorities have to recognize the right of obstruction or resistance, in terms of Section 16(1) of the Indian Telegraph Act, 1885, then the moment, any notification is published, all the landowners or interested persons, who have the knowledge of the commencement of any development work, would immediately resist or obstruct the work, and may even seek for re-location or if the towers, posts had already been erected, may seek for re-
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alignment or removal of towers and plants, erected by the public officer or licensee or any other person, engaged in the business of supplying electricity, authorised to carry out the works, in terms of an order passed by the appropriate Government, under Section 164 of the Electricity Act, 2003.
58.19 When a project involves huge expenditure, erection of many towers at various places and when such project involves, greater public interest, then even a single owner, under the pretext of making objections/resistance, would attempt to stall the process of execution of the project. When entry into any property is legally authorised, with payment of compensation to the land owner, no prior consent is required.
58.20 The Apex Court and other Courts in India, have categorically held that the action of the licencee or the competent authority, in erecting poles or posts, in the property or drawing lines over the property, does not amount to acquisition of lands and it amounts to only user of the property to the extent indicated and therefore, there is no requirement to intiate any land acquisition proceedings, giving opportunity to the land owners, when execution of the work, is ordered under Section 164 of the Act and accordingly, carried out by the licencee or any other competent authority.
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 any order, contrary to the orders, passed under Section 164 of the Act.
58.22. When the appropriate Government passes an order under Section 164 of the Act, the Collector is bound by the said order, and he is not superior to the Government, to hold that the Government has erred in passing an order, under Section 164 of the Act, authorising the licencee or the competent authority to carry out the work, in the route, which involves Techno Economic Consideration.
58.23 The Act confers powers to the Telegraph Authority to determine the property over which the lines are to pass or posts to be erected. The powers of the District Magistrate under Section 16(1) of the Indian Telegraph Act, 1885, does not extent to any adjudication, as to from where and how, the line has to be drawn over any specific item of the property or where posts have to be erected or not, in any specific item of the property.
58.24 The Power of the District Magistrate is confined only to the extent of exercising his discretion in granting permission to the Telegraph Act, to execute the work, when an application is made Page 15 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined by the licencee or the competent authority.
58.25 Section 10 of the Indian Telegraph Act gives legal sanction to the licencing authority to enter into any property, to lay poles or posts or draw electric lines. But while doing so, the damage of the property should be less. If there is any resistance, the licencee or the authorised person may approach the District Magistrate-cum- District Collector, to grant permission.
58.26 Once the power is conferred on the licencee or any other competent authority, there can be no objection to the implementation of the scheme, on the principles of natural justice or on the ground of unauthorised use of the land.
58.27 The legislature has conferred powers on the appropriate Government to authorize a public officer or a licencee, etc., under the Electricity Act to exercise the specific powers of an authority under the Indian Telegraph Act, 1885. The authorisation may be general in favour of a transmission company or in a given case, special. The route is decided by the transmission company. The decision to mark a route for laying an electric line is a highly specialized and technical. At that time, it is unrelated to any specific land owner. The route may be for over hundreds of kilometers passing over Government lands, lands of local authorities and private lands and it may not be practicable to hear the land owners along the entire route.
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.
58.29 The Electricity Act, 2003, is a progressive enactment, with a specific purpose of providing electricity to a large number of people, across the country, to promote industrial and sustainable development in all walks of life. Right of a land owner to possess and enjoy the property, though recognised as a Constitutional Right, under Article 300-A of the Constitution of India, such right has to yield to the Articles 14 and 21 respectively of the Constitution of India, which strive to achieve the Constitutional Goals, enshrined in the basic structure of the Constitution of India. [see T. Bhuvaneswari vs. The District Collector cum District Magistrate, Erode District, Erode, W.P. No.18548 of 2013, decided on 19.11.2013] Page 16 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined The said decision came to be challenged before the Hon'ble Apex Court by way of Special Leave Petition No.51 of 2021 which came to be dismissed vide order dated 01.02.2021.
10. In view of the settled legal position and the averments on record, this Court finds that in the present case, proper procedure has been followed by the respondent Nos.3 and 4 in respect of planing, erection of transmission tower and laying down of transmission lines and there is no violation of any provision. The proposal submitted by the petitioners has also been evaluated on merits.
11. The learned senior counsel has also submitted that the action of the respondent authority to construct the transmission tower amounts to acquisition of land and therefore, due procedure has to be followed in respect of such acquisition. The said contention is liable to be rejected. It is settled legal position that the action of the respondent Nos.3 and 4 of erecting the transmission tower and laying down the transmission lines does not amount to acquisition of land. It only amounts to the user of the property to the extent indicated and therefore, there is no requirement to initiate any land acquisition proceedings giving opportunity to the land owners, while execution of the work is ordered under Section 164 of the Electricity Act, 2003 and accordingly, carried out by the licensee or any competent authority.
12. Having regard to the specialized technical nature of the task in question and the fact that the transmission lines are laid for distribution of the electricity, this Court is of the opinion that no interference is called for in the present Writ Petition.
13. In view of the aforesaid observations, reasons and settled law, no case is made out by the petitioners for grant of relief as prayed Page 17 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025 NEUTRAL CITATION C/SCA/1922/2025 ORDER DATED: 06/05/2025 undefined for. The Special Civil Application is devoid of merits and is accordingly dismissed. No order as to costs.
14. The learned senior counsel Mr. Anshin Desai submits that the order may not be implemented for a period of two weeks and status quo be maintained so as to enable the petitioners to challenge the same in appeal. The learned counsel Mr. Akshat Khare appearing for the respondent Nos.3 and 4 opposes the said prayer and submits that the project has to be completed in time-bound manner. Considering the submissions, the said prayer is rejected.
(ANIRUDDHA P. MAYEE, J.) cmk Page 18 of 18 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Wed May 14 2025 Downloaded on : Sat May 17 09:25:53 IST 2025