Gujarat High Court
Rafikbhai Abhrambhai Modan vs State Of Gujarat on 2 September, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3904 of 2021
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 3904 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAFIKBHAI ABHRAMBHAI MODAN
Versus
STATE OF GUJARAT
===============================================================
Appearance:
JAIMIN A GANDHI(8065) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,
38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,6,7,8,9
MR SP HASURKAR(345) for the Respondent(s) No. 2
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 02/09/2021
ORAL JUDGMENT
1. Heard learned Advocate Mr. Jaimin Gandhi for the petitioners, learned AGP Mr. Ishan Joshi for the respondent No.1-State and learned Advocate Mr.S.P. Hasurkar for the respondent No.2.
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2. Rule returnable forthwith. Learned AGP Mr. Joshi and learned Advocate Mr. Hasurkar waive service of Rule for the respective respondents.
3. With consent of the parties the present petition is taken up for final hearing.
4. The petitioners before this Court are owners and occupiers of lands situated in village Simej and village Roopgadh, Taluka Dholka, District Ahmedabad. The respondent No.2 is a company engaged in construction and erection of 765 K.V. Lakadia - Vadodara transmission line having total length of 350 kms. starting from Lakadia (Bhuj) to Waghodia (Vadodara).
4.1 The petitioners have alleged that the transmission line being laid by the respondent No.2 is not properly aligned inasmuch as the alignment is not in a straight line as required in laying down of such line and whereas such alignment has been proposed to favour certain industrialists and other persons as referred to in the petition on account of which the petitioners are gravely prejudiced. Essentially in the petition the petitioners have challenged a notice dated 07.01.2021 issued by the respondent No.2 informing the recipients- petitioners about laying down transmission line and tower for such transmission line being required to be erected in the land of the petitioners and further informs the petitioners that the land is not being acquired and whereas agriculturists would be able to cultivate the land below the transmission line. The notice also informs about compensation to be payable for laying of the tower as well as for damage to the standing crops. The notice further informs that the recipients could approach the District Judge for enhancement of compensation.
Notice had been issued in the present petition in the month of February, 2021 and whereas this Court had deemed it appropriate to direct Page 2 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 the respondent No.2 to maintain status-quo over the land in question. The respondent No.2 having filed the reply has denied the allegation of mala fide and further submitted that while deviation of 14.42 degree is envisaged in the route of the transmission line between the village Roopgadh and Simej and the same is to avoid the transmission line passing by populated areas etc. An affidavit-in-rejoinder has been filed by the petitioners and to answer the queries of the Court and to clarify certain aspects a further affidavit-in- reply has been filed by the respondent No.2 and whereas the petitioners had been permitted to controvert the said further affidavit-in-reply by filing a written submissions, which is directed to be taken on record.
5. Learned Advocate Mr. Gandhi for the petitioners has submitted that from the map produced by the respondent No.2 with their affidavit-in-reply a clear deviation is seen which deviation as well as the entire alignment of the route from near village Roopgadh towards the west to village Simej in the east has been designed with a mala fide intent to facilitate a industrialist who is having a industry in the vicinity and which would have been affected if the alignment were in straight line. Learned Advocate has further submitted that the reason for change of the route as mentioned in the affidavit-in-reply of avoiding populated areas is an afterthought. Learned Advocate has further submitted that the transmission line does not take any deviation near village Koth which is an adjacent village and which is far more densely populated than the village Simej or Roopgadh. Learned Advocate has further submitted that in the affidavit-in-reply of the respondent No.2, more particularly at Page 96 wherein it is mentioned that whenever a deviation is necessary on account of any constraint after taking into consideration all technical aspects a report is submitted to the Chief Engineer Project who would approve the most convenient route. In this regard, it is submitted that such report is not placed on record. It is further submitted that the industrialist in question one M/s. Shakti Polyviv is an Page 3 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 influential person who could manage to purchase/ convert the land to non- agriculture land after the declaration of the proposed project by notification in the year 2017. It is further submitted that as far as possible the towers for transmission lines ought to be placed on the borders of the agricultural land as per the guidelines in this regard. Upon a query of this Court as regards the guidelines, learned Advocate has relied upon the decision of this Court in case of Narbheshankarbhai Arjunbhai Teraiya v. State of Gujarat, reported in AIR 2020 Guj 207 where reference is made by learned Advocate for appearing for the petitioners in the said petition to such guidelines. Learned Advocate for the petitioners has further submitted that the respondent No.2 ought to have planned the route of the transmission line through nearby lands which are barren land not put to agricultural use and furthermore it is submitted that the tower Nos. 471 and 472 as per the map produced by the respondent No.2 and as per the actual location are situated very close to each other in the agriculture fields of the same owner which not only causes undue hardship but they are not in a straight line and therefore against the usual alignment. Learned Advocate has relied upon the decision of this Court in case of Kashiben Lakhmanbhai v. Gujarat Energy Transmission Corporation Ltd. reported in 2015(2) GLR 1154 contending that this Court in the said judgment has considered an allegation of mala fide in laying down transmission towers. Learned Advocate Mr. Gandhi for the petitioners has thus submitted that the diversion/deviation of the transmission line near village Roopgadh and Simej is actuated with mala fide and designed to favour a particular person/ particular industry and whereas it is submitted that this Court may interfere and direct the respondents to take remedial steps.
6. This petition is strongly opposed by the learned AGP Mr. Joshi for the respondent No.1, who would submit that the law in this regard has been settled by a recent decision of this Court in LPA No. 534 of 2020 in a case Page 4 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 of Gujarat State Energy Transmission Corporation Ltd. v. Ratilal Maganji Brahmbhatt (Barot) and others reported in AIR 2021 (CC) 1044. Learned AGP would submit that the rights available to a land owner with regard to his land being used for the purpose of erecting a transmission tower is set out in the judgment and whereas it is submitted that a land owner is now by virtue of the said judgment entitled to claim for compensation only and whereas the land owner can neither claim that his consent was not obtained nor he can claim that before his land were to be used he should be granted an opportunity of hearing. Learned AGP has submitted that the said judgment also lays down that the land owner is not entitled to submit about alternate route which according to the land owner would be more feasible. Thus submitting learned AGP has requested that the petition may not be entertained by this Court.
7. This petition is also vehemently opposed by learned Advocate Mr. Hasurkar for the respondent No.2 who has submitted that the entire allegation of mala fide is absolutely baseless. Learned Advocate has taken this Court extensively to the affidavit-in-reply wherein in addition to denying the allegation of mala fide, the respondent No.2 has also elaborately explained as to how the route of all transmission lines is designed. For the purpose of better appreciation this Court deems it appropriate to reproduce the same hereinbelow :
"How route of transmission line is designed:
It is submitted that before transmission line is laid, the expert agency undertakes survey of route in three stages according to the Manual of Transmission Line. Invariably this work is outsourced to specialized agencies in the field. It can briefly summarized to, say that said survey is done in three stages, namely, Reconnaissance (including walkover) Survey, Preliminary Survey and Detailed Survey. In the process of reconnaissance survey, a bee line is drawn between the two sub-stations. The bee line Page 5 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 which is a straight line joining the two terminal points, is marked and a belt of width 10 kms (20 cms or the map), on either side of the centre line, is shown. In the master mosaic, the bee-line, which is the straight line joining two terminal points, should be neatly marked with pencil. The bee-line represents the shortest length, although, for various reasons, it may not be feasible to construct the line along the bee-line. Keeping the bee-line constantly in mind, alternative routes, with minimum unavoidable deviations from the bee-line, are marked carefully. In doing so, the following guidelines are kept in mind.
i) Allowing minimum number of crossings of major rivers, railway lines, national/state highways, overhead EHV power and telecommunication lines.
ii) Avoiding certain natural features like high mountainous terrain, steep slopes with cliff and huge boulders, large lakes and marshy places, etc.
iii) Avoiding populated areas, narrow gaps between two villages, large cash crop plantations and places of worship, etc.
iv) Avoiding close vicinity of aerodromes, radio stations, radar centers, rifle ranges, etc and also industrial installations where pollution, due to chemical effluents emanating there from, will affect the operation and maintenance of the power line.
v) In view of the statutory requirements of the Forest (Conservation) Act, 1980, avoiding, as far as possible, the reserved and protected forests and wild life sanctuaries. Where unavoidable, align the route so that the cutting of trees is kept to be the minimum.
vi) Keeping sufficiently away from continuous parallelism which Telecommunication and Railway Telephone lines. If there is continuous parallelism with existing HV or EHV line, it is preferable to maintain a minimum separation of 300 meters.Page 6 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021
C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 13.7 It is submitted that in the course of Walkover Survey, after making the various feasible routes on the map, a comparative study is be made on the basis of the following data.
i) Route length
ii) Number and type of angle points in each proposal indicating the sharpness of each deviation as measured on the map.
iii) Nature and number of major crossings.
iv) Deviation in the line due to civil or military aerodromes and other industrial installations.
v) Approach to the line for construction.
vi) Reaches through protected or reserved forests.
Vii) Long stretches in cultivated fields.
viii) Close parallelism with telecommunication and railway telephone circuits. With these details in hand, a walkover survey has to be carried out on all the alternative routes to arrive at the most economical route and to update the topographical maps available with the latest features observed during the survey.
It is further submitted that in the course of walkover survey, one is required to go over the area associated with the alternative routes proposed and collecting features observed other than those existing on the map. In addition, the indication on the following features would also be required to be checked without fail.
i) Communication lines Page 7 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021
ii) Power Lines
iii) Expanding villages and towns.
iv) Rich gardens and plantations, etc
v) Aerodromes, radar centre, rifle ranges.
vi) Undulating reaches unfit for erection and maintenance.
Vii) Roads constructed and roads improved recently.
Viii) Steep sloping terrain or steep slopes of hills.
ix) Large tanks, lakes, water logged areas, etc.
x) Reserved Forests and wooded areas with high trees.
xi) High hillocks and stretches with large boulders.
Xii) Irrigation wells likely to be made, tube well, pump houses.
Xiii)Forests where menace of wild elephants persist
xv) Availability of saddles in still section for better crossing of valleys.
Xvi) Ghat Roads in hills xvii) Gardens with grafted fruit trees.
Xviii) Prohibited area declared under statutory
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C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021
regulations.
Xiv) Rocky areas.
It is, further submitted that on completion of the Walkover Survey, the proposal of the most suited route is further studied and approval is obtained from the head of Department of Transmission before taking up preliminary survey."
7.1 Learned Advocate Mr. Hasurkar has thereafter drawn the attention of this Court to a map which shows that the relevant portion of the transmission line between the village Roopgadh and Simej to point out that the line has been designed in such a way that it avoids populated areas and whereas the deviation of 14.42 degree was necessary to avoid the habitat area of the villages in question. Learned Advocate Mr. Hasurkar has relied upon the further affidavit-in-reply to contend that the entire design of the line is to avoid populated areas and whereas another map showing a much longer portion of the route with two other proposed routes is also placed on record. Learned Advocate Mr. Hasurkar has submitted that all the routes as can be seen from the larger map are designed to pass through agriculture land and as far as possible to avoid habitat areas. Learned Advocate has further submitted that the land where the industry is located to allegedly favour whom there is a deviation in the present proposed route, was not disturbed in any of the three routes including the proposed route and the alternate routes. Thus, learned Advocate has tried to contend that the lines are designed as per the broad guidelines as reproduced from the affidavit-in- reply hereinabove and the allegation of designing the route to help some industrialists is completely far-fetched.
7.2 Learned Advocate Mr. Hasurkar for the respondent No.2 has further submitted that the transmission line in question is of national importance Page 9 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 inasmuch as the transmission line is designed for strengthening existing interstate transmission network and ultimately the transmission is for the larger public good. Learned Advocate Mr. Hasurkar has further submitted that the respondent No.2- company has obtained all the relevant permissions in question and whereas the Central Electricity Authority has granted prior approval to the respondent No.2 under Section 68(1) of the Electricity Act and furthermore the respondent No.2 has also been conferred with the powers under Section 164 of the Electricity Act, which the Telegraph Authority possesses under the Indian Telegraph Act, 1885 with respect to placing of telegraph poles. Learned Advocate Mr. Hasurkar has further submitted that the notice with regard to proposed project had been issued in local newspapers calling upon interested persons to submit their objections against the proposed transmission line within a period of 60 days which notice were published in various newspapers on 03.12.2019 and whereas no objection had been received from the petitioners at the relevant point of time. In this regard, learned Advocate Mr. Hasurkar has relied upon the decision of this Court in case of Patel Vasudevbhai Hargovandas and others v. District Magistrate and Collector and others in Special Civil Application No.14858 of 2019 where this Court has inter alia held that since the petitioner had not raised any objection with regard to public advertisement and hence the petitioner would be precluded from raising any objection with regard to route of transmission line in proceedings under Section 16(1) of the Act.
7.3 As far as the other contentions of the learned Advocate for the petitioners, learned advocate Mr. Hasurkar for the respondent No.2 submits that as far as possible the route has tried to avoid village Koth and Koth which is according to the petitioners is more densely populated than the villages Simej and Roopgadh and that the same could be made out from the Page 10 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 map annexed in the third affidavit preferred by the respondent No.2 i.e. the larger map referred to in the preceding para. Learned Advocate has submitted that the averments made at Page 96 have been taken out of context by the learned Advocate for the petitioners and whereas what is stated at Page 96 is a general procedure having been adopted by the respondent No.2 company. As far as allegations of M/s. Shakti Polyviv purchasing land and converting the land after 2018 is concerned, it is submitted that those allegations have more to do with the State Government and nothing to do with the respondent No.2 since the respondent No.2 is not the proper authority to grant NA permission. Insofar as attempt by the learned Advocate for the petitioners to submit that the alignment is not in a straight line and if it were straight from the two ends of the map at Page 111, then the land of the said M/s. Shakti Polyviv would have been effected, it is submitted by learned Advocate Mr. Hasurkar drawing attention of this Court to map at Page 200 referred to hereinabove that perusal of the map shows that the turn of 14.42 degree was purely natural and part of the design of the transmission line. Learned Advocate has further submitted that the guidelines of which a mention has been made in the judgment of this Court in case of Narbheshankarbhai Arjunbhai Teraiya v. State of Gujarat, reported in AIR 2020 Guj 207 is not a written down guidelines rather it is a guidelines evolved through customs and practice and whereas as far as possible and as far as practicable the company would try to place the tower at the border of the agriculture field, albeit without disturbing the alignment. Learned Advocate Mr. Hasurkar has further submitted that as far as tower Nos. 471 and 472 are concerned, while the petitioners may be right in submitting that the towers are slightly nearer to each other, but according to the learned Advocate the same has been occasioned on account of the fact that there is a stream/water way adjacent to the land in question which had to be avoided and thus the Page 11 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 towers are placed slightly nearer position as compared to the regular distance between two towers. Learned Advocate Mr. Hasurkar has further relied upon various decisions of the Hon'ble Supreme Court as well as this Court to contend that the land owner has a very limited right in a situation where a transmission tower is sought to be placed on his agriculture land. Learned Advocate has relied upon the decision of this Court in case of Himmatbhai Vallabhbhai Patel v. Chief Engineer (Project), Gujarat Energy Transmission and others reported in 2011 (2) GLH 781; judgment of this Court in case of Gujarat State Energy Transmission Corporation Ltd. v. Ratilal Maganji Brahmbhatt (Barot) (supra) and decision of the Hon'ble Supreme Court in case of Power Grid Corporation of India Ltd. v. Century Textiles and Industries Limited reported in (2017) 5 SCC 143.
7.4 Learned Advocate Mr. Hasurkar has in conclusion submitted that the present petition is absolutely misconceived, the allegations of the mala fide are misplaced and therefore this Court may not interfere in the present petition and dismiss the same and whereas the interim relief granted by this Court may be vacated.
8. Heard learned Advocates for the respective parties, who have not submitted anything further.
9. The principal ground on which the present petition has been preferred is alleging mala fide in planning alignment of the route of the transmission line near village Roopgadh to village Simej, Taluka Dholka, District Ahmedabad. The allegations of the petitioners being that there are certain industries near the route of the transmission line and instead of the alignment being in a straight line, the alignment has been changed and deviation has occurred in the route with a design to help some industrialists.
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10. At the outset, it is required to be noted that the allegation of mala fide is a mere bald assertion on the part of the petitioners and except for stating that the route has been changed to protect the industrialists who are named at Para 4A of the ground of the petition, the same have not been substantiated by the petitioners at all. The allegation of mala fide as can be culled out from the argument of the learned Advocate for the petitioners whereby it is sought to be contended based upon the map produced by the respondent No.2 at Page 111 that the proposed line should have travelled in a straight line joining the starting point of the map at Page 111 at the western side to the farthest point of the line at the eastern side. Learned Advocate has also produced a copy of the map at Page 111 in his written submissions with a straight line superimposed thereupon joining the two ends referred to hereinabove and based upon the same it is contended that if the alignment of the transmission line were in a straight line as drawn by the petitioners then the industries or the persons mentioned in the petition might have been affected and to give such persons an undue advantage the transmission line has been designed with a alignment which is not straight. In the considered opinion of this Court, such a submission cannot be countenanced.
It is required to be noted that designing of a transmission line is a highly technical exercise which requires expertise and it further appears from the affidavit-in-reply that there are various stages before a line is finalized including a resonance survey, preliminary survey and detailed survey. The line is designed to avoid major rivers, railway lines, national/ state highway and other high voltage and telecommunication line and it is designed to avoid certain natural features like high mountainous terrain, steep slopes with cliff and huge boulders, large lakes and marshy places etc. Furthermore populated places, narrow gaps between two villages, large cash Page 13 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 crop plantations and places of worship, etc. are also avoided. Furthermore, the line is designed to avoid close vicinity of aerodromes, radio stations, radar centers, rifle ranges, etc. and also industrial installations where pollution, due to chemical effluents emanating therefrom, will affect the operation and maintenance of the power line. It is also designed to avoid forests wild life sanctuaries and as far as avoidable cutting of trees.
11. The map at Page 200 produced by the respondent No.2 which is a map of a larger area and also shows two other alternate routes to the proposed route, clearly show that an exercise involving technical expertise had been carried out upon which initially three different routes were designed of which the respondent No.2 had chosen the present proposed route, which according to them would be most feasible. As such in none of these three routes the industry which is stated to be located, as per respondent No.2, towards the southern side of the deviation of the transmission line between the village Roopgadh and Simej was affected. Furthermore, a bare perusal of the map at Page 200 clearly reveals that transmission line had travelled from west to east in a straight line except for a deviation near village Ganeshdholka where the transmission line crosses a railway track. Though this Court does not hold any technical expertise to state whether the line in question was the best possible line, but apparently it becomes clear on viewing the map at Page 200 that if the deviation between the village Roopgadh and Simage on 14.42 degree had not been taken, then the line would have travelled adjacent to village Simej. Furthermore, if one compares the proposed route with the alternate routes as seen in the map itself, it becomes clear that from the deviation in question all the three lines i.e. the proposed route and the alternate routes had travelled in the same direction towards the village Ganol which is on the south-east side of the map. Thus, this Court is inclined to hold in favour of the respondent No.2 Page 14 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 that the deviation in question was for a clear bona fide technical requirement since if the route had travelled in a straight line it would have travelled adjacent to the inhabited areas of village Simej. Furthermore, the route does not appear to be designed to give any undue advantage to any person or industry which is located towards the southern side of the deviation referred to hereinabove. Furthermore, as far as the route as per the drawing produced by the petitioners in the written submissions, in the considered opinion of this Court, is in addition to being without any technical expertise on the subject, appears to be without appreciating the larger map at Page 200 which clearly shows that the proposed route was infact travelling in a straight line. Furthermore, on such a subject, which would require technical and special expertise, merely by drawing a line on a map and contending that such a route would have been a better route would not be a proposition which can be countenanced.
11.1 With regard to the above, apart from the ground of mala fide and rather to substantiate the same, one of the main grounds of challenge, as could be discernible from the petition as well as submissions of learned Advocate for the petitioners, rested on a contention that the route of the transmission line should have travelled in a straight line. The petitioners have not produced any material in favour of the submission that the route of the transmission line should move in a straight line only, more particularly in light of the submissions made on behalf of the respondent- company that preparing of a transmission route is a technically specialize exercise undertaken by experts and deviations are contemplated in such exercise for various reasons, in this case to avoid populated areas of village Simej. The contention on behalf of the petitioners, relying upon the map produced by the respondent-company at Page 111, being that the transmission line should have travelled from the point where the Page 15 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 transmission route is shown in the map at the left hand side of the map to the point where the last point of the route as shown in the map at its right hand side in a straight line devoid of the deviation occurring between the village Roopgadh and Simej. In the considered opinion of this Court, such submission requires to be rejected outrightly inasmuch as the petitioners cannot merely state that from a map showing a limited portion of the route that from the point where the route starts in the map to the point to the route ends in the map, a straight line being drawn which according to the petitioners, ought to have been the way the transmission line should have travelled. As explained hereinabove, map at Page 111 shows a limited portion of the route travelled by the transmission line and whereas the map at Page 200 shows a larger area through which the route has travelled. Furthermore, from the said map, it can be clearly seen that apart from the route in question which is marked as the proposed route, there are two other routes being alternate route No.2 and alternate route No.3. A mere glance at the map clearly reveals that the route in question has travelled in a straight line till the deviation and further from the deviation, the proposed route as well as the alternate routes run near parallelly to each other upto village Ganol where deviations can be seen in the proposed line as well as the alternate routes, the alternate route No.2 merging with the proposed route at the deviation near village Ganol. It appears that apart from the fact of the petitioners not submitting any material to contend that there was some deliberate deviation near village Roopgadh and Simej, the other contention that the route not travelling in a straight line also appears to be meritless on a plain glance at the map, since it clearly appears that the route more or less has travelled in a straight line only.
11.2 As regard contention of learned Advocate Mr. Hasurkar that though public notices were issued, no objections were taken by the petitioners at Page 16 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 that stage, it appears that the respondent No.2 had issued public notice calling for objections/representations as regards the route of the proposed transmission line before authorization under Section 164 of the Electricity Act and while the names of the villages to which the petitioners belong had also been mentioned in the said public notice. The notice also clearly stated that copy of the proposed route was available with the signatory of the public notice and whereas objections/ representations were to be submitted within a period of two months. It clearly appears that the petitioners have not submitted any objection/representation against the proposed route of transmission line and whereas it is only when the transmission line/ transmission tower is sought to be passed over or erected in the agriculture fields of the petitioners the present challenge is raised.
11.3 A Co-ordinate Bench of this Court in Special Civil Application No. 14858 of 2019 vide oral order dated 27.09.2019 has inter alia taken a view that when the petitioners therein had not raised any objection before transmission line had been sanctioned, it would not be open for the petitioners to raise any objection to the route in a proceeding under Section 16(1) of the Act. In the instant case also, the petitioners had never raised any objection before approval/sanction of the route of the transmission line and hence, in the considered opinion of this Court, the petitioners now cannot be heard to challenge the route of the transmission line.
11.4 A Division Bench of this Court (Coram : Chief Justice Vikram Nath as then he was and Justice J.B. Pardiwala) in case of Gujarat State Energy Transmission Corporation Ltd. v. Ratilal Maganji Brahmbhatt (Barot) (supra) have authoritatively pronounced with regard to the rights available to a company after receiving authorization under Section 164 of the Electricity Act, 2003 from the Competent Authority read with the powers available Page 17 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 under Section 10 of the Telegraph Act. The judgment further sets out the rights and restrictions of a land owner, when a transmission line is sought to be passed over his land. Relevant conclusions of the judgment are quoted below for better appreciation :
" The final conclusions are as under :-
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.
xxx xxx xxx 58.23 The Act confers powers to the Telegraph Authority to determine the property over which the lines are to pass or posts to Page 18 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 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.
xxx xxx xxx 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.
xxx xxx xxx 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]"
The Hon'ble Division Bench in the above judgment has held that the authorization in terms of Section 164 of the Electricity Act read with Section 10 of the Indian Telegraph Act, authorizing the licensee with all powers of the Telegraph Authority including the power to enter into any private property subject to the condition that as little damage as possible should be caused and to give adequate compensation to the land owner. The Page 19 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 Hon'ble Division Bench has further held that once the technically 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. The Hon'ble Division Bench has further held that upon the Competent Authority issuing authorization under Section 164 of the Electricity Act, 2003, upon the licencee, the licencee is conferred with the powers of a Telegraph Authority under the Indian Telegraph Act, 1885 to determine the property over which lines are to pass or posts to be erected. That the transmission company decides the route and whereas such decision is highly specialized and technical. At the time of marking a route, it is unrelated to any specific land owner.
Thus, applying the ratio laid down by the Hon'ble Division Bench to the present case, it can be concluded that after technical feasibility of the project is approved by the Appropriate Government by issuing authorization under Section 164 of the Electricity Act, 2003, the petitioners could not have sought for re-alignment or shifting of the route. The Hon'ble Division Bench has also held that at the time of marking a route it is unrelated to a specific owner. Thus, the contention of the petitioners for change of route is clearly circumscribed by the ratio laid down by the Hon'ble Division Bench.
11.5 Thus in conclusion, this Court holds that the present petitioners having not objected/represented at the stage of public notice issued by the respondent No.2, it would not be open for the petitioners to now question the route of transmission line in question after the technical feasibility of the project has been approved by the appropriate Government by issuing an order under Section 164 of the Electricity Act. Insofar as the principal Page 20 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 contention of the alignment having been changed to favour particular person or entity, as held hereinabove while the petitioners had not objected to the route of transmission line at the stage of public notice, even otherwise, having regard to the specialized and technical nature of preparing a route of transmission line and having regard to the map at Page 200, this Court is of the opinion that the contention of mala fide, more particularly on the ground of the route not allegedly travelling in a straight line is also meritless. Furthermore, as held by the Hon'ble Division Bench in case of Ratilal Maganji Brahmbhatt (Barot) (supra), it is the prerogative of the transmission company to decide the route and whereas there is clear absence of any cogent and reliable material in support of the allegation of mala fide, therefore also the present petition does not deserve to be entertained. Insofar as the contention that tower Nos. 471 and 472 being nearer to each other causing prejudice to the very selfsame owners in addition to the fact that the owners had not raised any objection at the stage of public notice, this Court is further inclined to accept the submission of learned Advocate for the respondent No.2 that such a situation has been occasioned on account of a stream/water way being adjacent to the land in question which had to be avoided.
12. For the reasons stated hereinabove, the present petition being devoid of merit, the same is hereby rejected.
13. In view of disposal of the main matter, Civil Application No.1 of 2021 would not survive, hence the same is disposed of accordingly.
14. At this stage, learned Advocate Mr. Gandhi on behalf of the petitioners submits that the interim relief which has continued in favour of the petitioners since February 2021 may be continued for some more time Page 21 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021 C/SCA/3904/2021 JUDGMENT DATED: 02/09/2021 till the petitioners approach the Hon'ble Division Bench of this Court . This request is strongly opposed by learned Advocate Mr. Hasurkar appearing on behalf of respondent no.2 who submits that they are suffering extraordinary loss every day on basis of the interim relief and whereas learned Advocate Mr. Hasurkar has submitted that to balance the equities this Court may modify the interim relief for some reasonable period inasmuch statement of learned Advocate Mr. Hasurkar may be recorded by this Court whereby in case the Appellate Court were in favour of the petitioners then inspite of having laid transmission line in the land of the petitioners, respondent no.2 would not claim any equity for such reason.
15. Having regard to the submissions made by learned Advocate Mr. Gandhi and learned Advocate Mr. Hasurkar and having regard to the fact that in coming to the conclusion reached hereinabove since this Court has relied upon judgments of this Court therefore while this Court deems it appropriate not to extend the interim relief granted earlier any further, statement of learned Advocate Mr. Hasurkar for respondent No.2 is recorded that respondent No.2 company while it may be permitted to lay the transmission line in the land of the present petitioners, in an event where the Division Bench were to hold in favour of the petitioners then the respondent No.2 company would not claim any equity on the ground of the transmission line have already been laid. The said statement of learned Advocate Mr. Hasurkar shall continue for a period of two weeks from the date of the decision.
(NIKHIL S. KARIEL,J) BDSONGARA Page 22 of 22 Downloaded on : Fri Sep 03 01:41:14 IST 2021