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[Cites 18, Cited by 0]

Gujarat High Court

Vinodchandra Manibhai Patel vs District Collector on 13 July, 2021

Author: Ashutosh J. Shastri

Bench: Ashutosh J. Shastri

     C/SCA/6743/2021                                     ORDER DATED: 13/07/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6743 of 2021
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                       VINODCHANDRA MANIBHAI PATEL
                                   Versus
                            DISTRICT COLLECTOR
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
RUSHABH H MUNSHAW(8958) for the Petitioner(s) No. 1
MR BHARGAV PANDYA, AGP for the Respondent(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 2
==========================================================
 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                   Date : 13/07/2021

                                    ORAL ORDER

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the impugned order dated 25.3.2021 passed by the respondent District Magistrate in Case No.1 of 2021.

2. The brief facts leading to filing of the petition are that petitioner is an owner of the land situated at Revenue Survey Nos.84,86 and 87/A at village Padmala, Taluka Vadodara (Rural), District Vadodara, which is an old tenure land, and he is carrying his agricultural activity and the land is having around 300 Neem trees. Respondent No.2, which is an electricity company, had submitted an application before the respondent Collector, Vadodara for installation of electricity poles over the land of the petitioner. The said poles are to be implanted practically in the middle of the land. In response to the said application, the District Collector was pleased to issue notice upon the petitioner, in which detailed reply is submitted. However, according to the petitioner, without paying any heed to the said reply, the District Collector was pleased to pass an order on 25.3.2021 rejecting the objection of the petitioner and Page 1 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 permitted the respondent electricity company to install the electricity poles across the land of the petitioner, which order is made the subject matter of the present petition.

3. The Court, upon submission of the petitioner, was pleased to issue notice on 13.5.2021 and after the respondent submitted appearance and filed affidavit-in-reply, the matter has come up for consideration before this Court today.

4. Learned advocate Mr. S.P.Majmudar appearing on behalf of the petitioner has submitted that no-doubt, there is a power with the electricity company to lay down the electricity pole, but it owes the duty to see that minimum damage to take place of a person affected. According to Mr. Majmudar, electricity poles are being implanted over the land of the petitioner as if the land would be divided almost in two parts, which would virtually less down the potentiality of the land. According to Mr. Majmudar, though the land is agricultural land, but is coming within the nearby vicinity of industrial zone and is also having N.A. potentiality and as such, the potential land, if to be dealt with in such a manner, like this the action cannot be said to be just and proper if this electricity line is to be laid down in the manner in which it is to be sought, then irreversible damage would take place. Mr. Majmudar has submitted that the District Collector is sufficiently invested with the power to examine the issue and has to apply independent mind while considering the request of the electricity company. Mr. Majmudar has submitted that the detailed objections have been raised, which are forming part of the record, but by a brief order, same have been discarded and resulted into passing of the impugned order. Mr. Majmudar has submitted that every exercise of jurisdiction must be backed by proper application of mind which is not visible. It has been Page 2 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 submitted that the authority has not considered the request of the electricity company from the view of concept of minimum damage and also not considered the alternative route. It has been submitted that the petitioner is not having any objection if the poles are laid down from the corner of the land of the petitioner and as such, alternative route ought to have been examined by the respondent Collector while considering the request of the company. That having not been done, it has been contended that the very exercise of power is ill-founded, hence the relief prayed for deserves to be granted.

5. Learned advocate Mr. Majmudar has submitted that the aspect of minimum damage to be caused has not been considered at all, which is the basic requirement of exercise of such power as held by the Coordinate Bench of this Court in a decision dated 13.8.2019 passed in Special Civil Application No.13815 of 2019. Hence, the order in question deserves to be quashed and alternatively, it is requested to remand the proceedings back to the Collector for taking a fresh decision. No other submissions have been made.

6. As against the aforesaid submissions, learned advocate Mr. S.P.Hasurkar appearing on behalf of the main contesting respondent authority, who has submitted a detailed affidavit-in- reply, has vehemently opposed the grant of any relief to the petitioner. Mr. Hasurkar has submitted that the petitioner has not initially disclosed the fact of filing of the civil suit before the Court, may be for compensation, it is only after disclosure of the said fact by the company in the affidavit-in-reply, in rejoinder, it has been submitted and disclosed such particulars, which conduct of the petitioner would dis-entitle him from equitable jurisdiction of this Court.

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C/SCA/6743/2021 ORDER DATED: 13/07/2021

7. Apart from that, Mr. Hasurkar has submitted that this issue has been gone into as to what should be considered by the District Collector in a detailed decision dated 6.11.2020 passed in Letters Patent Appeal No.534 of 2020, and by referring to para 58.16 of the said decision, it has been contended that technical feasibility and alternative route aspects cannot be gone into by the District Magistrate as it is exclusively within the domain of the expert body of the company and the authority and therefore, the alternative route, if not examined, and technical feasibility of shifting the pole is not examined, hence it is of no significance since it is outside the purview of the authority of the District Collector. While exercising the discretion, the District Magistrate has to see whether the electricity line is with sanction and approval or not and other aspects regarding compensation etc. are to be looked into and therefore, when such is a position propounded on interpretation of the provisions of the Electricity Act, there is hardly any merit in the petition to assail the order passed by the authority.

8. In addition to the above, Mr, Hasurkar has pointed out that the order passed by learned Single Judge, which is heavily relied upon, dated 13.8.2019 in Special Civil Application No.13815 of 2019, is relating to different line and the route and the facts contained therein are not to be confused with the present circumstances in which laying down of the electricity pole is with specific permission and sanction of the authority and additionally, it has been pointed out that by virtue of the recent decision of the Division Bench, it has not been upset by Hon'ble the Apex Court, the observations contained in para 58 are sufficient enough to answer the stand of the petitioner and as such, the previous decision of learned Single Judge is not Page 4 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 possible to be taken in aid by the petitioner. Further, by referring to the relevant circumstance from the affidavit-in-reply filed in detail by respondent No.2, Mr. Hasurkar has drawn the attention of this Court to specific averments made from page 64 onwards and thereby has submitted that the technical feasibility and alternative route aspect is not possible to be gone into by the District Collector and has rightly passed an order keeping this peripheral limits of its discretion.

9. Learned advocate Mr. Hasurkar has further drawn the attention of this Court to the relevant provisions and has then pointed out to the Court the map, which is reflecting on page 90, and has submitted that there are 2- 3 lines which are indicated and the suggestion of the petitioner to lay down the electricity line at the corner boundary of the field is not possible in view of the apparent reading of the map itself and this map has been prepared on the basis of the experts' advice and keeping in view all technical formalities, which are required to be undertaken while laying down the high-tension line and hence, there is no error apparent committed by the District Magistrate in passing the impugned order. This being the position, Mr. Hasurkar has requested the Court not to entertain the petition.

10. Having heard learned advocates appearing for the respective sides and having gone through the material placed on record, prima facie, it appears that the order in question is not without granting any opportunity to the petitioner. The very decision making process appears to be not irregular in any form, but it is in close conformity with the principles of natural justice. Further, in view of the circumstances which are stated in the affidavit-in-reply, which is neither disputed nor controverted by filing affidavit-in-rejoinder, same have gone un-denied and since Page 5 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 these relevant observations are material to the present controversy, the Court deems it proper to reproduce the same hereunder:-

"With reference to contentions A, B & E regarding suggestion as to alternative route and insistence of the petitioner that same should be adopted and it was obligatory on the part of the District Magistrate to consider, it is submitted that,
1) route is already designed by specialized agency on the basis of multiple parameters regarding designing of route of a transmission line. In the case of the present line also, considering various settled parameters line is designed according to the need of the project and the said route is approved also. Safety Regulation 2010 prescribes that all line crossings are to be done as nearly at right angle. It is pertinent to note that there are three tower locations falling in the land of the respondent namely 691-A, 692, 693. There is GETCO's Line crossing between 691-A and 692. Before line is entering into the land of the respondent, after 690A and before 691 cther is bullet train crossing. Construction of foundation of location no 691A has been completed and construction of location 691 is under progress.

NOC of NHSRCL has also been obtained prior to commencement of aforesaid construction activities. It is pertinent to note that due to coming of Bullet Train there is proposal of shifting of existing GETCO line also. Moreover Apart from 765 KV LVTPL line there is 220 KV GETCO line in the same land of the petitioner, wherein both the transmission utilities have to ensure the falling distance is maintained while tower spotting and transmission line corridor overlapping shall be avoided while route alignment of the line, Further there is a mini river along side the plot boundary of land owner restricting the tower spotting and route alignment of 765KV Transmission line. Considering all above technical aspects the present route alignment is the best possible option with minimum damage hence suggestion of deviation is regretted. Present route is meticulously designed considering above specific aspect and therefore suggestion of the respondent is not viable and hence regretted. It is also stated that public notice issued by Respondent No.2 before granting approval for transmission line as well as Notification is issued in the Government Gazette for that purpose, no objections were filed by the petitioners. It is stated that petitioner Page 6 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 cannot now object with regard to the sanctioned route of the transmission line and the same is required to be laid down as per sanctioned route. It is denied in view of above that it is not absolutely necessary that line is to be laid from the middle of the land of the petitioner. It is further submitted that petitioner has made similar submission before District Magistrate. Pursuant to the oral direction of the District Magistrate, exercise was carried out to explore possibility of alternative route suggested by the petitioner. During one of such hearings, District Magistrate was explained why deviation is not possible. However during the hearing of similar proceedings regarding another land owner, District Magistrate was persuaded in view of the judgment in the matter of Ratilal Barot V/s Getco, (referred herein after) that it is not with his jurisdiction to consider the deviation and therefore, perhaps, the same not reflected in the order. Please appreciate map annexed herewith marked at Annexure R3 vis-a-vis to this submission, from viewpoint stated above."

11. From the aforesaid averments made in the affidavit-in- reply, the circumstances which are uncontroverted cannot be unnoticed by the Court, particularly when the technical feasibility cannot be gone into. So far as compensation aspect is concerned about the damage, which is likely to be caused to the petitioner, it appears from the order that the District Collector has taken into consideration and if aggrieved by such, it is always open for the petitioner to file an appeal before the District Court by virtue of Section 16(3) of the Indian Telegraph Act as mentioned in the order itself. It has been clearly pointed out that Safety Regulation 2010 has been kept in mind while laying down/ implanting the poles in the agricultural field of the petitioner and further, what has been explained in the affidavit- in-reply on oath by the respondent authority from page 64 onwards, it does not appear to dislodge the findings of the order passed by the District Collector as impugned in the petition. So, looking to the aforesaid circumstances as well as the judgments which have been pointed out, hardly there is any scope for the Page 7 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 petitioner to agitate against the impugned order.

12. Additionally, the most material fact which has been noticed by the Court is that the Division Bench of this Court in Letters Patent Appeal No.534 of 2020, vide order dated 6.11.2020, has analyzed the entire provisions at great length and the observations contained in para 58 onwards are worth to be taken note of and as such, the Court would deem it proper to reproduce the same hereunder:-

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, 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 Page 8 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 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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C/SCA/6743/2021 ORDER DATED: 13/07/2021 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, Page 10 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 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 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.

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C/SCA/6743/2021 ORDER DATED: 13/07/2021 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]

13. The aforesaid observations are clearly indicating that the District Collector is not empowered to consider the aspect of alteration of any route or alignment except to remove difficulties faced by the licensee. As a result of this, even the request of alternative route of the petitioner not dealt with, in the considered opinion of this Court, is insignificant as the District Collector is not empowered to suggest any alteration as same is within the exclusive domain of the experts. Hence, simply because the alternative route contention is not dealt with, which has direct bearing upon less minimum damage concept, the order is not possible to be assailed by the petitioner.

14. Conjoin reading of the pleadings as well as the observations made by the Division Bench of this Court, which are stated to be undisputedly not disturbed at all by Hon'ble the Apex Court, this Court is unable to accept the stand of the petitioner. Hence, no case is made out to call for any interference.

15. Additionally, the Court is of the opinion that the District Collector, Vadodara while granting application has taken into consideration the damage issue and corresponding quantum of it Page 12 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021 C/SCA/6743/2021 ORDER DATED: 13/07/2021 and as such, it is not correct to contend that the concept of minimum damage is completely overlooked by the authority. The affected persons have got an appropriate remedy to prefer appropriate proceedings before the District Court by virtue of Section 16(3) of the Indian Telegraph Act, as stated in the order itself, and as such, it is not possible to accept that the petitioner is remedy-less. The change of route and alteration of such is not gone into, precisely when appropriate approval has been granted by the competent Authority while laying down the electricity line and as such, this being the situation, it is not possible for this Court to accept the petition on the basis of the prevailing record and peculiar background of these facts. The relevant consideration, which is required to be given to the issues, appears to have been attended by the authority concerned and as such, on the basis of un-controverted averments, is not possible to be accepted. Accordingly, petition stands DISMISSED with no order as to costs. Notice discharged.

(ASHUTOSH J. SHASTRI, J) OMKAR Page 13 of 13 Downloaded on : Fri Jul 16 23:17:32 IST 2021