Gujarat High Court
Mukhtar Mohmedhusain Sipai vs State Of Gujarat on 4 May, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/7361/2023 ORDER DATED: 04/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7361 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 7362 of 2023
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MUKHTAR MOHMEDHUSAIN SIPAI Versus STATE OF GUJARAT ============================================= Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1 MR TRUPESH KATHIRIYA, AGP for the Respondent(s) No. 1 DS AFF.NOT FILED (N) for the Respondent(s) No. 1 MS MEGHA JANI(1028) for the Respondent(s) No. 5 NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4 ============================================= CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Date : 04/05/2023 ORAL COMMON ORDER
1. Heard Mr. Bharat T. Rao, learned advocate assisted by Ms. Vineeta Vinayak, learned advocate appearing for the petitioner and Ms. Megha Jani, learned advocate appearing for the respondent No.5.
2. The petitioners herein are the owner and co-owner of the land bearing survey No.407/1 paiki 2 khata No.394 admeasuring 7689 sq. meters and the land bearing survey No.353/1 paiki 1 / paiki 1 admeasuring 20235 meters respectively of Mouje Valasan and Pipaliyaraj, Taluka Vankaner, District Morbi and conduct agriculture activities in the said lands (hereinafter referred to as 'the subject land').
The petitioners herein have filed the captioned petitions on the ground that the respondent No.5 is forcefully trying to enter Page 1 of 4 Downloaded on : Sat May 06 20:43:48 IST 2023 C/SCA/7361/2023 ORDER DATED: 04/05/2023 into the land subject of the petitioners and the petitioners herein have preferred an application to the Mamlatdar, Vankaner dated 22.02.2023 stating that the respondent No.5 has installed the windmill without following the provisions of law and the transmission line is passing through the subject land of the petitioner. In the aforesaid facts, the petitioners herein have approached this Court with the following reliefs:
"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, declaring that respondent no.5 has no right to pass electricity transmission line for transmission of wind energy generated by it to sub-station through and/or near the land of petitioner bearing Survey No.407/1 paiki 2 Khata No.394 admeasuring 7689 sq. mtrs. agricultural land at Mouje Valasan, Taluka Vankaner, District Morbi for the reasons stated in the Memo of Petition and in the interest of justice;
(B) Pending admission, hearing and final disposal of the above Special Civil Application to restrain the respondent no.5 its agents and servants from passing electricity transmission line for transmission of wind energy generated by it to sub-station through and/or near the land of petitioner bearing Survey No.407/1 Paiki 2 Khata No.394 admeasuring 7689 sq. mtrs.
agricultural land at Mouje Valasan, Taluka Vankaner, District Morbi for the reasons stated in the Memo of Petition and in the interest of justice;
(C) To grant ad-interim relief in terms of para - 21 (B) herein above.
(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require."
3. On 24.03.2023, this Court issued Notice and passed the following order:
"1. Heard Mr. B.T. Rao, learned advocate appearing for the petitioner.
2. Mr. Rao, learned advocate submitted that the petitioner is the owner of the land bearing Survey No. 407/1 Paiki 2 Khata No. 394 admeasuring 7689 sq. mtrs agricultural land at Mouje Valasan, Taluka Vankaner, District Morbi and that the petitioner Page 2 of 4 Downloaded on : Sat May 06 20:43:48 IST 2023 C/SCA/7361/2023 ORDER DATED: 04/05/2023 is doing agricultural activities in the said land. Mr. Rao has placed reliance on village Form No. 7 & 12, in respect of the aforesaid land. Mr. Rao, learned advocate appearing for the petitioner submitted that the respondent No.5 has installed windmill in the sim of village Valasan in the government waste land. It is submitted that after completion of installation of windmill, for the purpose of electricity generated from teh windmill to the sub-station, respondent No.5 is required to lay down electricity line. Mr. Rao submitted that on coming to know that the respondent No.5 is trying to forcefully enter the land of the petitioner, the petitioner made an application to the Mamlatdar, Vankaner on 22.2.2023 requesting that respondent No.5 has installed windmill and is trying to forcefully pass the transmission line from the land of the petitioner with the help of Police and Road and Building Department and the petitioner requested to stop the same.
3. Being aggrieved by the aforesaid, Mr. Rao submitted that the provisions of Section 10 read with Section 16 of the Indian Telegraph Act, 1885 apply only to Government owned electricity distribution or transmission company (GETCO or PGVCL in this case). When any person raises objection, then GETCO or PGVCL can make application to the Collector & District Magistrate for laying down line in the land of private person.
3.1 In the facts of the present case, the respondent No.5 Company is not giving energy free of cost to the Government and it is undertaking this activity only for the purpose of making profit. It was submitted that there is sufficient space available, the respondent No.5 intentionally wants to pass electricity transmission line from the agricultural land of the petitioner field and has erected pole for the same. Reliance is placed on the photographs duly produced at Annexure -F(Colly).
4. Considering the aforesaid submissions made by Mr. Rao, learned advocate appearing for the petitioner, Issue Notice returnable on 1.5.2023.
5. By way of ad-interim relief, the parties are directed to maintain status-quo till the next returnable date.
Direct Service is permitted."
4. Today, when the matter is taken up for hearing, Ms. Jani, learned advocate appearing for the respondent No.5, has placed reliance on the maps, duly produced on the record and the permissions, duly granted by the respondent authorities and stated that the electricity poles are put up on the land belonging to the government at a distance of approximately Page 3 of 4 Downloaded on : Sat May 06 20:43:48 IST 2023 C/SCA/7361/2023 ORDER DATED: 04/05/2023 8.5 meters from the central line of Vankaner - Amarsar Nitana State Highway, which are required to be shifted by about 2.5 meters. Ms. Jani, learned advocate, further stated that the installation of poles even after such shifting would be on government land so as to meet with the requirement of communication dated 04.03.2023 issued by the Executive Engineer and not on the subject land of the petitioners.
5. Considering the statement made by Ms. Jani, learned advocate appearing for the respondent No.5, in the opinion of this Court, the grievance as raised by the petitioners herein, by filing the captioned petitions, stand redressed.
6. With the aforesaid, the petitions stand disposed of. Interim relief, granted earlier, stands vacated.
7. The aforesaid order is passed in view of the statement made by Ms. Jani, learned advocate appearing for the respondent No.5.
(VAIBHAVI D. NANAVATI,J) NEHA Page 4 of 4 Downloaded on : Sat May 06 20:43:48 IST 2023