Karnataka High Court
Noorandappa S/O. Danappa Telagade vs The Union Of India on 6 November, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 200622 of 2016
C/W WP No. 200623 of 2016
WP No. 200624 of 2016
WP No. 200625 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.200622 OF 2016
C/W
WRIT PETITION NO.200623 OF 2016
WRIT PETITION NO.200624 OF 2016
WRIT PETITION NO.200625 OF 2016 (GM-RES)
IN WRIT PETITION NO.200622 OF 2016
BETWEEN:
Digitally signed by 1. NOORANDAPPA S/O DANAPPA TELAGADE
NARAYANAPPA AGED MAJOR, OCC:AGRICULTURE
LAKSHMAMMA R/O GUNDADINNI VILLAGE
Location: HIGH TQ.BASAVANA BAGEWADI
COURT OF
KARNATAKA DIST:VIAJAYAPURA-586101.
...PETITIONER
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. THE UNION OF INDIA
DEPARTMENT OF POWER
NEW DELHI
BY ITS PRINCIPAL SECRETARY.
2. THE STATE OF KARNATAKA
DEPARTMENT OF POWER SUPPLY
VIDHANA SOUDHA
BENGALURU-560001
REP. BY ITS PRINCIPAL SECRETARY.
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WP No. 200622 of 2016
C/W WP No. 200623 of 2016
WP No. 200624 of 2016
WP No. 200625 of 2016
3. THE N.T.P.C. LIMITED
KOODAGI SUPER THERMAL POWER PROJECT
KOODAGI POST, TQ. BASAVANA BAGEWADI
DIST:VIJAYAPURA-586101
REP. BY ITS GROUP GENERAL MANAGER.
4. THE DEPUTY COMMISSIONER
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. SUDHIRSINGH R. VIJAPUR, DSGI FOR R1
SRI. SHASHI KIRAN SHETTY, AG A/W
SMT. SARITHA KULKARNI, HCGP FOR R2 & R4
SRI. D.P. AMBEDKAR, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
DIRECTION OR ORDER IN THE NATURE OF CERTIORARI QUASHING
THE ORDER OF RESPONDENT No.4 DATED 29.01.2015 BEARING
No.REV/LAND/CR/ 2014-15 VIDE ANNEXURE 'B' IN SO FAR AS
PERTAINS TO LAND OF THE PETITIONER BEARING Sy.No.27/2 OF
GUDADINNI VILLAGE, TQ. BASAVANA BAGEWADI OF VIJAYAPUR
DISTRICT & ETC.
IN WRIT PETITION NO.200623 OF 2016
BETWEEN:
1. KANTAPPA S/O KARIYAPPA BASARKOD
AGED MAJOR, OCC:AGRICULTURE
R/O BENAL VILLAGE
TQ.BASAVANA BAGEWADI
DIST:VIJAYAPURA-586101.
...PETITIONER
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. THE UNION OF INDIA
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WP No. 200622 of 2016
C/W WP No. 200623 of 2016
WP No. 200624 of 2016
WP No. 200625 of 2016
DEPARTMENT OF POWER
NEW DELHI
BY ITS PRINCIPAL SECRETARY.
2. THE STATE OF KARNATAKA
DEPARTMENT OF POWER SUPPLY
VIDHANA SOUDHA
BENGALURU-560001
REPRESENTED BY ITS PRINCIPAL SECRETARY.
3. THE N.T.P.C. LIMITED
KOODAGI SUPER THERMAL POWER PROJECT
KOODAGI POST, TQ.BASAVANA BAGEWADI
DIST:VIJAYAPURA-586101
REPRESENTED BY ITS GROUP GENERAL MANAGER.
4. THE DEPUTY COMMISSIONER
VIJAYAPURA-586101.
....RESPONDENTS
(BY SRI. SUDHIRSINGH R. VIJAPUR, DSGI FOR R1
SRI. SHASHIKIRAN SHETTY, AG A/W
SMT. SARITHA KULKARNI, HCGP FOR R2 & R4
SRI. D.P. AMBEDKAR, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
DIRECTION OR ORDER IN THE NATURE OF CERTIORARI QUASHING
THE ORDER OF RESPONDENT No.4 DATED 29.01.2015 BEARING No.
REV/LND/ CR/ 2014-15 VIDE ANNEXURE B IN SO FAR AS PERTAINS
TO LAND OF THE PETITIONER BEARING Sy. No.193/2A 2B/A/2 OF
BENAL VILLAGE, TQ. BASAVANA BAGEWADI OF VIJAYAPUR DISTRICT
& ETC.
IN WRIT PETITION.200624 OF 2016
BETWEEN:
1. SHANKARGOUDA S/O AYYANAGOUDA PATIL
AGED ABOUT 40 YEARS
OCC:AGRICULTURE
R/O. GUNDADINNI VILLAGE
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C/W WP No. 200623 of 2016
WP No. 200624 of 2016
WP No. 200625 of 2016
TQ.BASAVANA BAGEWADI
DIST:VIJAYAPURA-586101.
...PETITIONER
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. THE UNION OF INDIA
DEPARTMENT OF POWER
NEW DELHI
BY ITS PRINCIPAL SECRETARY.
2. THE STATE OF KARNATAKA
DEPARTMENT OF POWER SUPPLY
VIDHANA SOUDHA
BENGALURU-560001
REPRESENTED BY ITS PRINCIPAL SECRETARY.
3. THE N.T.P.C. LIMITED
KOODAGI SUPER THERMAL POWER PROJECT
KOODAGI POST, TQ.BASAVANA BAGEWADI
DIST:VIJAYAPURA-586101
REPRESENTED BY ITS GROUP GENERAL MANAGER.
4. THE DEPUTY COMMISSIONER
VIJAYAPURA-586101.
....RESPONDENTS
(BY SRI. SUDHIRSINGH R. VIJAPUR, DSGI FOR R1
SRI. SHASHI KIRAN SHETTY, AG A/W
SMT. SARITHA KULKARNI, HCGP FOR R2 & R4
SRI. D.P. AMBEDKAR, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
DIRECTION OR ORDER IN THE NATURE OF CERTIORARI QUASHING
THE ORDER OF RESPONDENT No.4 DATED 29.01.2015 BEARING No.
REV/LND/CR/2014-15 VIDE ANNEXURE B IN SO FAR AS PERTAINS
TO LAND OF THE PETITIONER BARING Sy. No.115/X-1 OF GUADINNI
VILLAGE, TQ. BASAVANA BAGEWADI OF VIJAYAPUR DISTRICT &
ETC.
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WP No. 200622 of 2016
C/W WP No. 200623 of 2016
WP No. 200624 of 2016
WP No. 200625 of 2016
IN WRIT PETITION NO.200625 OF 2016
BETWEEN
1. PRAKASH S/O BHIMAPPA BILAGI
AGED ABOUT 40 YEARS
OCC:AGRICULTURE
R/O. GUNDADINNI VILLAGE
TQ.BASAVANA BAGEWADI
DIST:VIJAYAPURA-586101.
...PETITIONER
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND
1. THE UNION OF INDIA
DEPARTMENT OF POWER
NEW DELHI
BY ITS PRINCIPAL SECRETARY.
2. THE STATE OF KARNATAKA
DEPARTMENT OF POWER SUPPLY
VIDHANA SOUDHA
BENGALURU-560001
REPRESENTED BY ITS PRINCIPAL SECRETARY.
3. THE N.T.P.C. LIMITED
KOODAGI SUPER THERMAL POWER PROJECT
KOODAGI POST, TQ.BASAVANA BAGEWADI
DIST:VIJAYAPURA-586101
REPRESENTED BY ITS GROUP GENERAL MANAGER.
4. THE DEPUTY COMMISSIONER
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. SUDHIRSINGH R. VIJAPUR, DSGI FOR R1
SRI. SHASHIKIRAN SHETTY, AG A/W
SMT. SARITHA KULKARNI, HCGP FOR R2 & R4
SRI. D.P. AMBEDKAR, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
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WP No. 200622 of 2016
C/W WP No. 200623 of 2016
WP No. 200624 of 2016
WP No. 200625 of 2016
DIRECTION OR ORDER IN THE NATURE OF CERTIORARI QUASHING
THE ORDER OF RESPONDENT No.4 DATED 29.01.2015 BEARING No.
REV/LND/CR/2014-15 VIDE ANNEXURE B IN SO FAR AS PERTAINS
TO LAND OF THE PETITIONER BEARING Sy.No.30 OF GUDADINNI
VILLAGE, TQ. BASAVANA BAGEWADI OF VIJAYAPUR DISTRICT &
ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court by filing the above writ petitions seeking for the following reliefs:
WP No. 200622/2016a) Issue a Writ, direction or order in the nature of certiorari quashing the order of Respondent No.4 dated 29.01.2015 bearing No. REV/LND/CR/2014-15 vide Annexure-B in so far as pertains to land of the petitioner bearing Sy. No. 27/2 of Gudadinni Village, Tq-Basavana Bagewadi of Vijayapur district, in the interest of justice and equity.
b) Issue any other order, direction or writ as this Hon'ble Court deemed fit in the facts and circumstances of the case as stated above with costs in the interest of justice and equity.WP No. 200623/2016
a) Issue a Writ, direction or order in the nature of certiorari quashing the order of Respondent No.4 dated 29.01.2015 bearing No. REV/LND/CR/2014-15 vide Annexure-B in so far as pertains to land of the petitioner bearing Sy. No.193/2A 2B/A/2 of Benali -7- NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 Village, Tq-Basavana Bagewadi of Vijayapur district, in the interest of justice and equity.
b) Issue any other order, direction or writ as this Hon'ble Court deemed fit in the facts and circumstances of the case as stated above with costs in the interest of justice and equity.WP No. 200624/2016
a) Issue a Writ, direction or order in the nature of certiorari quashing the order of Respondent No.4 dated 29.01.2015 bearing No. REV/LND/CR/2014-15 vide Annexure-B in so far as pertains to land of the petitioner bearing Sy. No.115/x-1 of Gudadinni Village, Tq-Basavana Bagewadi of Vijayapur district, in the interest of justice and equity.
b) Issue any other order, direction or writ as this Hon'ble Court deemed fit in the facts and circumstances of the case as stated above with costs in the interest of justice and equity.WP No. 200625/2016
a) Issue a Writ, direction or order in the nature of certiorari quashing the order of Respondent No.4 dated 29.01.2015 bearing No. REV/LND/CR/2014-15 vide Annexure-B in so far as pertains to land of the petitioner bearing Sy. No. 30 of Gudadinni Village, Tq-
Basavana Bagewadi of Vijayapur district, in the interest of justice and equity.
b) Issue any other order, direction or writ as this Hon'ble Court deemed fit in the facts and circumstances of the case as stated above with costs in the interest of justice and equity.
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2. The NTPC Limited has set up a Super Thermal Power Plant (STP) for generation of electricity at Koodagi village in Basavana Bagewadi taluk, known as "Koodagi STP Plant'. For the purpose of running of the said plant respondent No.3 proposed to draw water from the Alamatti reservoir by installing pipelines from the reservoir to the power station running into several kms., passing through several villages such as Golasangi, Telagi, Angadageri, Chikalwadi, Gudadinni, Wanadal and Benal etc., where the petitioners reside and own lands.
Respondent No.3 further proposed to have a 40 mtr wide corridor which included power transmission lines and the Water pipelines mentioned above.
Pipelines were to be installed underground to a depth below 3 mtrs where the transmission lines were to be erected above ground, with respondent No.3 having absolute right to inspect, maintain both the transmission line and the pipeline by having a right -9- NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 to pass through the land on which both of them were situate. Both the pipeline and transmission lines were proposed to be installed in terms of the Indian Telegraph Act, 1885. It is aggrieved by the same that the petitioners in various petitions are before this Court seeking for the reliefs aforesaid extracted.
3. Sri.Harshavardhan Malipatil, learned counsel appearing for the petitioners in all the matters would submit that:
3.1. The Indian Telegraph Act, 1885 ['ITA' for short] though initially brought into force for the purpose of erecting telegraph wires and cables has been extended to electricity lines but has not been extended insofar as the water pipelines are concerned, as such there is no power and authority under the ITA to lay water pipelines by making use of the draconian powers under the ITA.
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 3.2. By referring to Subsection (1)(AA) of Section 3 of ITA, he submits that telegraph means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electric magnetic emissions, Raio waves or Hertzian waves, galvanic, electric or magnetic, etc. None of them refer to water or water pipelines.
3.3. By referring to Subsection (4) of Section 3 he submits that a telegraph line needs a wire or wires used for the purpose of telegraph with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same.
3.4. Use of the word 'pipe' under Subsection (4) of Section 3 relates to a pipe enclosing an electric
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 wire and does not relate to a water pipeline and as such a telegraph line cannot extend to a water pipeline.
3.5. Under Section 7 of the ITA, the Central government has powers to make Rules for conduct of telegraphs which does not include the water pipeline, thus, no rules could be framed under ITA in respect of water pipeline.
In terms of Section 10 of the ITA, the Telegraph Authority may from time to time place and maintain a telegraph line under, over, along or across and force upon any immovable property, thus the use of telegraph line under Section 10 can only relate to subsection (4) of Section 3 and not to a water pipeline and as such the unrestricted power under Section 10 of the ITA cannot be exercised for the purposes of laying a water pipeline.
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 3.6. In terms of Section 14, while laying a telegraph line, the Authority could alter the position of gas, water pipeline or drains, which would essentially mean the alteration of the location of existing gas or water pipelines or drains and does not relate to laying of new water pipelines.
On these grounds, he submits that the respondent-Authority having made use of the provisions of the ITA for laying a water pipeline is not permissible and as such, the area earmarked for a water pipeline could not be so done under the ITA and therefore, the impugned order passed by respondent No.4 dated 29.01.2015 at Annexure-B determining compensation invoking Section 16 of ITA read with Section 165 of Electricity Act, 2003 ['E.A. 2003' for short] is without any authority or basis and as such, the said order is required to be quashed.
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 3.7. It is in that background, he submits that the above petition requires to be allowed.
4. Sri.Shashi Kiran Shetty, learned Advocate General who appears in the capacity of Senior counsel in the present matters would submit that:
4.1. The water pipeline sought to be constructed from the Alamatti reservoir to the Power station is for the proper running of the power plant and as such, is not a separate water pipeline which has nothing to do with an electricity line or power plant.
4.2. His submission is that both the transmission line and water pipeline are used for the purpose of better generation and distribution of the electricity inasmuch as water would run from Alamatti reservoir to the power plant to cool the power plant, wash the coal, to operate the boilers in order to generate steam, etc. and on power being generated, the said
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 power/electricity would be evacuated by using the transmission lines. In this regard, he relies upon the definitions under Section (2) of the E.A. 2003, more particularly,
a) Subsection (20) thereof relating to 'electric line' which is reproduced hereunder for easy reference:
"electric line" means 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;
b) Subsection (22) relating to 'electrical Plant' which is reproduced hereunder for easy reference:
"electrical plant" means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include-
(a) an electric line; or
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(b) a meter used for ascertaining the quantity of electricity supplied to any premises; or
(c) an electrical equipment, apparatus or appliance under the control of a consumer;
c) Subsection (25) relating to 'electrical System' which is reproduced hereunder for easy reference:
"electricity system" means a system under the control of a generating company or licensee, as the case may be, having one or more -
(a) generating stations; or
(b) transmission lines; or
(c) electric lines and sub-stations; and when used in the context of a State or the Union, the entire electricity system within the territories thereof;
d) Subsection (30) relating to 'generating station' or 'station' which is reproduced hereunder for easy reference:
"generating station" or "station" means any station for generating electricity, including any building and plant with step-up transformer, switchgear, switch yard, cables or other appurtenant equipment, if any, used for that purpose and the site thereof; a site intended to be used for a generating station, and any building used for housing the operating staff of a generating station, and where electricity is generated by water-power, includes penstocks, head and tail works, main and regulating reservoirs, dams and other hydraulic works, but does not in any case include any sub-station;
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e) Subsection (40) relating to 'line' which is reproduced hereunder for easy reference:
"line" means any wire, cable, tube, pipe, insulator, conductor or other similar thing (including its casing or coating) which is designed or adapted for use in carrying electricity and includes any line which surrounds or supports, or is surrounded or supported by or is installed in close proximity to, or is supported, carried or suspended in association with, any such line;
f) Subsection (50) relating to 'power system' is reproduced hereunder for easy reference:
"power system" means all aspects of generation, transmission, distribution and supply of electricity and includes one or more of the following, namely:-
(a) generating stations;
(b) transmission or main transmission lines;
(c) sub-stations;
(d) tie-lines;
(e) load despatch activities;
(f) mains or distribution mains;
(g) electric supply-lines;
(h) overhead lines;
(i) service lines;
(j) works;
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 4.3. By referring to Section 163 of the EA 2003, he submits that every licensee can enter into the premises to remove any fittings or other apparatus of licensee and in terms of Section 164, the appropriate government may by order in writing, for placing of electric lines or electrical plants for transmission of electricity act as a telegraphic authority under the ITA.
Section 164 of EA of 2003 which is reproduced hereunder for easy reference:
164- Exercise of powers of Telegraph Authority in certain cases -
The appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination or works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained".
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 4.4. By referring to all the above provisions and linking them, he submits that a licensee under EA 2003 being a Telegraph authority under ITA, an electric system including generating station, or transmission lines or electrical lines. An electrical line including any structure, tower pole or appliance connected to the said line, a generating system being inclusive of hydraulic works, the power system being inclusive of all works and works being inclusive of electrical line any building, plant and machinery, apparatus would include water pipeline. The Telegraph Act can be made use of for the purpose of entry into the land for laying a water pipeline to be used in conjunction with a power plant.
4.5. The decision of Hon'ble Bombay High Court in Vivek Brajendra Singh v. State
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 Government of Maharashtra1, more particularly portions of para 16, 21 and 22 thereof which are reproduced hereunder for easy reference:
Immunity From Challenge:
16. Mr. Deshpande and Mr. Manohar, the learned counsel for the respondents submitted that the provisions of the Indian Telegraph Act, 1885 contained in Part III of the Act and the provisions of the Electricity Act, 2003 contained in Part VIII of the Act and all incidental provisions must be treated as immune from challenge on the grounds of violation of Articles 14 and 19 by a virtue of Article 31-A of the Constitution of India. It is submitted by the learned counsel that the constitutional validity of the provisions has been questioned by the petitioners either on the ground of breach of Article 14 for not providing an opportunity for the land owners and occupiers to be heard or on the ground of Article 19 i.e. the alleged interference with their right to carry on their trade, occupation etc. due to the placing of lines. In the submission of the learned counsel challenges on these grounds are not permissible by virtue of Article 31-A. Article 31-A reads as follows:
"31-A.Saving of laws providing for acquisition of estates, etc.-- (1) Notwithstanding anything contained in article 13, no law providing for--
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or 1 2012 SCC OnLine Bom 450
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(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directions, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 144 or Article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article,--
(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include--
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
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(ii) any land held under ryotwarj settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub- proprietor, under proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue." The first question that arises is, what is the nature of the provisions contained in Part VIII (sections 67 to 69) of the Electricity Act, 2003 and Part III (sections 10 to 19B) of the Indian Telegraph Act, 1885? In substance, these provisions do not provide for the acquisition of any estate but only for the acquisition, extinguishment or modification of rights in the estate. The term "estate" is defined in Article 31-A sub-clause (2) to include all kinds of land referred to in sub-clause (iii) of Clause (a) as follows:
"(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans."
The land of the petitioners, which is largely agricultural, fall within the meaning of the term "estate".
The term "rights" has been defined to include any rights vesting in a proprietor, sub-proprietor etc. vide Clause
(b) of sub-article (2). Under the provisions of the Electricity Act, 2003 and the Indian Telegraph Act, 1885 in question, the authorities, under directions of the Government, acquire several rights in estates. Those rights are in the nature of opening up and breaking up of the soil and pavement of any street, railway or tramway upon certain conditions, the power to lay overhead lines and for that purpose do all things necessary, including the removal of trees, structures and objects, vide sections 67 and 68 of the Electricity Act, 2003 or the old Act of 1910. The authorities also acquire
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 the rights over estates, such as the user of property under, over, along, across, in or upon which the telegraph authority places any line or post vide 10(b), the right to enter the property in order to repair or remove lines vide 11, the power to alter position of gas or water pipes or drains vide 14 and further to apply for an order for removing resistance or obstruction to the exercise of such a right by a District Magistrate. The effect of Clause (b) to the proviso to section 10 of the Telegraph Act is that though the authority may place etc. a line upon any immovable property, the Central Government thereby does not acquire any right other than that of user only in the property. Thus, the provisions in question must be construed as law providing for the acquisition of rights in any estate within the meaning of Article 31-A and, therefore, cannot be deemed to be void on the ground that they are inconsistent with or take away or breach any of the fundamental right conferred by Articles 14 or 19 of the Constitution. An executive act performed under the law in question, namely, of deciding to enter upon and entering the property of owners, is also not vitiated on the ground that the initial attempt to enter the property for the purpose of placing lines was not preceded by notice or hearing. As observed earlier, the scheme of the law is that the person offering resistance or obstruction is entitled to be heard when the transmission company applies for removal of such resistance and obstruction under section 16(1). In our view, though not expressly provided for, the requirement of hearing must be read into section 16(i). We are informed that as a practice land owners are always heard when applications are made by a transmission company for removal of obstruction and resistance. The requirement to hear the owners or occupiers at this stage is, in our view, sufficient compliance with the rules of natural justice and, admittedly, in the present case all the petitioners have been heard by the District Magistrate.
21. At this stage, we must record the fact that at the suggestion of the Court, the respondents offered to hear the petitioners on whether any adjustments could be made in the route and also offered to make such adjustments subject to technical advise and feasibility, through independent officers. The respondents also agreed to consider the petitioners' case for higher compensation in certain cases, through independent officers. However, the petitioners rejected the offer on
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 the ground that they had no faith in the respondents or their officers.
22. We do not see any merit in the contention that the provisions are violative of Article 21 on the ground that they adversely affect the health of persons living in or around high tension lines. In the first place, the electric line in question, which is high tension 400 KV line is to be placed over agricultural fields and not over a residential area. Secondly, no proof is placed before the Court to enable it to draw an inference that the placing of electric line causes cancer as alleged. We are unable to draw this inference on the basis of a report from Australia placed on record.
4.6. He submits that when powers under the ITA are exercised in relation to the E.A of 2003, the user of the property under, over, along, across, in or upon the land in which the Telegraph Authority places the line or post would be vested with such Authority. The rights under would include the right to construct or lay a water pipeline which power is included under the ITA and on that basis, he submits that the contention of the learned counsel for the petitioner that it is only the rights over the land
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 which can be exercised by the Authority under the ITA is not sustainable.
4.7. The decision of Hon'ble Orissa High Court in Manoranjan Sa v. State of Odisha2, more particularly paras 10, 13 to 19 thereof which are reproduced hereunder for easy reference:
10. The stand of the NTPC is identical to that of the state-opposite parties. According to them, the NTPC is a Government Company dealing with generation of electricity and allied activities. It was entrusted to set up a 2 × 800 MW Super Thermal Power Project at village Darlipalli in the district of Sundergarh for the public purpose and especially beneficial to the State of Odisha (50% power is allocated for Orissa) to meet the electricity requirement of Eastern Region of India, including states like Odisha, West Bengal, Jharkhand.
Apart from Coal, water is the major critical requirement for setting up the Thermal Power Plant and for generation of electricity. The Company is in possession of all requisite approvals, permissions, NOCs sanctioned by various authorities. The project is being set up as per the joint decision arrived at between Government of India and Government of Odisha. The total area of 2005 acres allotted to the company includes 1441 acres of private land and 570 acres of Government land. Almost 95% of the project construction work has already been completed. The laying of water pipe line is being done at one and a half meter depth of the ground surface and the surface land would be available for utilization of the respective land owners. The State Government has authorized the Collector, Jharsuguda to issue appropriate order under Section 16(1) of the Indian Telegraph Act. 1885, read with Section 164 of the Electricity Act, 2003 for acquisition of right of user in respect of private property with proper compensation and subject to certain conditions. So far as payment of 2 2019 SCC OnLine Ori 437
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 compensation is concerned, their stand was that entire compensation amount for 198 acres of private land has already been deposited with the authority.
13. The Electricity Act, 2003 came subsequent to the Indian Telegraph Act, 1885. While the Electricity Act was enacted, they have referred to the Indian Telegraph Act, 1885 in Section 164 of the Electricity Act, 2003, wherein it was specifically stipulated that the Indian Telegraph Act, 1885 will be made applicable for the purpose of implementing the Government orders for placing electrical lines or electrical plants for transmission of the electricity for public interest. A reading of the said provision, it is crystal clear that in respect of a scheme, the mode of implementation is by following the mandates of Section 164 of the Electricity Act, 2003 read with Sections 10 & 16 of the Indian Telegraph Act, 1885. Section 16 of the Indian Telegraph Act, 1885 provides the mechanism of compensation and the petitioners can have no grievance on that.
14. Section 10 of the Indian Telegraph Act clearly stipulates that the Telegraph authority may, from time- to-time, place and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property. Section 10 of the Indian Telegraph Act, 1885 gives power to enter upon and there is no restrain except complying Section 16 of the said Act. Such power under Section 10 is exercised in public interest. The intention of the legislature is very clear and there is no ambiguity in it. Such provision still holds the field since 1885 i.e. nearly 135 years and exercise of such power under this Act would not amount to an acquisition, even if that is the intention of the legislature. However Section 16 of the Indian Telegraph Act, 1885 provides the mechanism of compensation. As submitted by the learned counsel for the State, the State Government has already decided to give adequate compensation as required under the law.
15. The State Government having jurisdiction under the Electricity Act, 2003 by order in writing for placing the electric line or electrical plant for the purpose of transmission of electricity, which are necessary for the proper coordination of the work conferred upon any other person engaged in the said work for supplying electricity as stipulated under Section 164 of the 2003 Act, authorized the concerned Collector to issue
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 appropriate orders under Section 16(1) of the Indian Telegraph Act, 1885 read with Section 164 of the Electricity Act, 2003 for acquisition of right of user in respect of the private property with proper compensation and subject to certain conditions. Thus, the same is in accordance with the statutory provisions.
16. Power under Section 10 of the Indian Telegraph Act, 1885 is absolute. In case where there is resistance or obstruction in the exercise of that power, the occasion to approach the District Magistrate arises as provided under Section 16(1) of the Act for compensation. While enacting the Electricity Act, 2003, the legislature has also taken the object behind the Indian Telegraph Act and incorporated such mandate under Section 164 of the Electricity Act, 2003.
17. Sub-section (5) of Section 2 of the Electricity Act, 2003 provides "Appropriate Government", which means (a) The Central Government,-- xxxxxxxx
(b) In any other case, the State Government having jurisdiction under this Act.
Thus, the State Governing being the appropriate Government has taken step and conferred permission to the company to carry out the work for the public interest.
18. The Apex Court in the case of M.D., Ramkrishna Poultry P. Ltd. v. R. Chellappan, reported in (2009) 16 SCC 743 observed that the provisions of Section 164 of the Electricity Act, 2003 empowers the appropriate Government to confer on any authority or person engaged in the business of supplying electricity under the Act, any of the powers which the Telegraph Authority possesses under the Telegraph Act with respect to the placing of telephonic lines or posts.
19. In view of such power conferred under Section 10 of the Indian Telegraph Act, the authority while putting on the electric line or water line, can carryout such action as stipulated under Section 10 of the Indian Telegraph Act. The persons if aggrieved for such action may take recourses to Section 16 of the Indian Telegraph Act for higher compensation. On perusal of the impugned order dated 06.04.2016, it is revealed that the State
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 Government authorized the concerned Collectors to issue appropriate orders under Section 16(1) of the Indian Telegraph Act, 1885 read with Section 164 of the Electricity Act, 2003. Since the power was vested to the Collector under Section 16(1) of the Indian Telegraph Act, read with Section 164 of the Electricity Act, 2003, it has permitted NTPC the power of right of way/right of use of private property, the same cannot be treated as re-delegation of power of "Telegraph Authority" on NTPC. Similarly as it reveals from the counter that out of Ac. 198.718, compensation has already been disbursed for an area of Ac. 123.00.
4.8. On the basis of the above, he submits that the Hon'ble Orissa High Court while dealing with similar matter where waterline was laid has come to a categorical conclusion that laying of such waterline would be covered under Section 10 of ITA and by relying on the said decision he seeks to persuade this Court to hold the same.
4.9. The establishment of a power plant and laying of transmission wires would include water pipeline is for a public purpose and as such, this Court ought not to interfere at the instance of land owners who own small parts of the land.
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 4.10. By relying on the decisions below, he submits that almost all the land owners have accepted the compensation which has been paid and it is only few land owners like the petitioners who have challenged the works being carried out by the respondents. The project being one for public infrastructure, the private interest of a few will have to yield to the larger general public interest and as such, this Court ought not to only on the basis of the claims made by the petitioner intercede in the matter.
4.11. He relies upon a decision in Om Prakash v.
State of U.P.3, more particularly para 30 which is reproduced hereunder for easy reference:
Point 3
30. Now remains the vital question as to whether in the light of our finding on Point 1, the notification under Section 4(1) so far as it dispenses with Section 5-A inquiry by invoking powers under Section 17(4) of the Act and the consequential notification under Section 6 are required to be set aside or not. We must keep in 3 (1998) 6 SCC 1 : 1998 INSC 256
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 view that we are called upon to exercise our jurisdiction under Article 136 of the Constitution of India. Such jurisdiction will necessarily have to be exercised in the light of facts and circumstances of these cases. Section 4 notification in the present cases is dated 5-1-1991. It is followed by Section 6 notification dated 7-1-1992. In between, the appellants went to the High Court and got status quo order since 31-3-1992. The result is that till today, even after the expiry of 6 years and more, the land acquisition proceedings qua the appellants' lands have remained stagnant. It is also to be kept in view that the impugned notification under Section 6 (sic 4) of the Act was issued for the purpose of planned development of District Ghaziabad through NOIDA and by the said notification, 496 acres of land spread over hundreds of plot numbers have been acquired. Out of 494.26 acres of land under acquisition, only the present appellants owning about 50 acres, making a grievance about acquisition of their lands have gone to the Court. Thus, almost 9/10th of the acquired lands have stood validly acquired under the land acquisition proceedings and the only dispute centres round 1/10th of these acquired lands owned by the present appellants. It is a comprehensive project for further planned development in the district. We are informed by learned Senior Counsel, Shri Mohta for NOIDA, that a lot of construction work has been done on the undisputed land under acquisition and pipelines and other infrastructure have been put up. That the disputed lands belonging to the appellants may have stray constructions spread over different pockets of this huge complex of lands sought to be acquired. That if notification under Section 4(1) read with Section 17(4) is set aside qua these pockets of lands, then the entire development activity in the complex will come to a grinding halt and that would not be in the interest of anyone. It was also contended by learned Senior Counsel for the respondents that it was not the appellants' contention that the proposed acquisition was not for public purpose nor any mala fides were alleged to be behind such acquisition. Learned Senior Counsel, Shri Shanti Bhushan, fairly stated that though the appellants might have mounted a challenge on the ground of mala fides, they have not done so before the High Court nor before this Court. Under these circumstances, we find considerable force in the contention of learned Senior Counsel for the respondent that it is neither advisable nor feasible to interfere with the acquisition of such large tracts of lands when the occupants of 9/10th of the acquired lands have not
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 thought it fit to challenge these acquisition proceedings and the occupants of only 1/10th of lands are agitating their grievance since more than six years, firstly before the High Court and then before this Court. The appellants' main grievance centres round the question whether their lands having alleged abadi could be acquired in the light of the State policy for not acquiring such lands. For such a contention, of course, grievance could have been made under Section 5-A inquiry if it was held. But that could have been urged years back before Section 6 notification saw the light of day in 1992. Now after a passage of more than six years, it would not be feasible to put the clock back and permit the appellants to agitate this contention which appears to be the sole contention for opposing the acquisition proceedings in the facts of the present cases by permitting them to urge this grievance in Section 5-A inquiry which according to them should be held at this stage. We will show presently that this solitary grievance of the appellants could be vindicated before the State authorities themselves by relegating the appellants to proper remedy by way of representation under Section 48 of the Act and when that remedy is available to the appellants and when that is the sole grievance of the appellants, at this stage no useful purpose would be served by striking down the notification under Section 4(1) qua the appellants so far as invocation of Section 17(4) is concerned and the consequent notification under Section 6. That we cannot permit upsetting the entire apple-cart of acquisition of 500 acres only at the behest of 1/10th of landowners whose lands are sought to be acquired. We may also keep in view the further salient fact that all the appellants have filed references for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned Senior Counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time-barred during the pendency of these proceedings. Therefore, without prejudice to their contentions in the present proceedings, they have filed such references. Be that as it may, that shows that an award is also made and references are pending. Under these circumstances, for enabling the appellants to have their say regarding release of their lands on the ground that they are having abadi and that the State policy helps them in this connection, the appellants can be permitted to have their grievances voiced before the State authorities under Section 48 rather than under Section 5-A of the Act at such a late stage. Consequently, despite our
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 finding in favour of the appellants on Point 1, we do not think that this is a fit case to set aside the acquisition proceedings on the plea of the appellants about non- compliance with Section 5-A at this late stage. It is also obvious that if on this point, the notifications are quashed for non-compliance of Section 5-A, that would open a Pandora's box and those occupants who are uptil now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities. All these complications are required to be avoided and hence while considering the question of exercise of our discretionary jurisdiction under Article 136 of the Constitution of India, we do not think that this is a fit case for interference in the present proceedings with the impugned notifications. Point 3, therefore, is answered in the affirmative against the appellants and in favour of the respondents.
4.12. The M.S.P.L. Ltd. v. State of Karnataka4, more particularly para 48 which is reproduced hereunder for easy reference:
48. It is admitted position that the challenge to the acquisition of more than a thousand acres was made by a small fraction of land owners having land less than 10% of the total acquisition. Compensation for rest of the 90% land acquired had been accepted by their respective land owners. The Division Bench has quashed the entire acquisition of more than a thousand acres at the instance of such a small fraction. This aspect has been dealt with by this Court in the case of Amarjit Singh v. State of Punjab reported in (2010) 10 SCC 43 and Om Prakash v. State of U.P. reported in (1998) 6 SCC 1. The learned Single Judge had placed reliance on the judgment of Om Prakash (supra). It is also worthwhile to mention that out of approx 110 acres of land acquires for MSPL, only one land owner possessing only 4.34 acres of land, had filed the writ appeal before the Division Bench. Quashing the entire acquisition at 4 2022 SCC OnLine SC 1380 : 2022 INSC 1058
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 the instance of one land owner having 4.34 acres of land out of total acquisition for MSPL of 110 acres, would be against the public policy and public interest. The MSPL alone provides employment to 292 persons with a substantial investment of Rs. 200 crores. The employment to approximately 300 persons by MSPL is also alleged to be double of the number of employees as projected in the proposal. Further, in the case of AISL acquisition of 914 acres is challenged by a fraction of less than 10% land owners. The estimated project of AISL is approx Rs. 2092 crores and would employment to at least one thousand persons.
4.13. Decision of this court in B C LOKESH -v- THE STATE OF KARNATAKA5 para 4(a) and (d) which are reproduced hereunder for easy reference:
4. Having heard the learned counsel for the parties and having perused the Petition papers, this Court declines indulgence in the matter for the following reasons:
a) Petition property as already mentioned above is only a 'granted land' and not the one bought by the grantee by his toil. Although a government grant feeds the title, law recognizes a certain difference between a 'granted land' and a 'private property'. The difference in degrees of ownership that lies between a 'granted land' and a private land assumes significance while adjudging the acquisition of 'granted land' by the government i.e., the grantor for a public purpose on payment of compensation. It cannot be disputed that the grantor has retained discretion to rescind the grant on the proven violation of the terms of grant. In other words, the level of resistance to acquisition of a 'granted land' cannot be as high as in the case of acquisition of a 'private land' there being no difference when it comes to payment of compensation. This critical difference needs to be kept in view when grantee of the land lays a challenge to its acquisition heavily banking upon the
5 WRIT PETITION NO. 968 OF 2023, Dated 9-03-2023
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 constitutional guarantee to the private property u/a 300A, more particularly, when the very grant is admittedly subject to certain conditions that diminish the measure of ownership. An argument to the contrary cannot be sustained without turning a Nelson's Eye to the apparent differences relevant for the classification of persons holding 'absolute ownership' and 'restricted ownership' over the properties. It hardly needs to be stated that equality is violated not only when equals are treated unequally but unequals are meted out unequal treatment vide E.P.ROYAPPA VS. STATE OF TAMIL NADU, AIR 1974 SC 555.
d) Where huge extent of lands are acquired for public purpose, namely the project of the kind, at times, small pockets of lands pose some difficulty, may be because of inadvertence or otherwise of the officials concerned. Some infirmities have crept into the acquisition process. Such instances galore in the Law Reports and standard books on land acquisition. Voiding acquisition of such a small pocket of lands will have undesirable consequences on the project as a whole for which other lands in a huge extent have been notified; sustaining such an acquisition, notwithstanding the arguable lacunae therein would protect the public interest and some damages can be awarded in addition to compensation to set right the injustice so that a fair balancing of competing interests is achieved. That is how a Writ Court has to individualize justice keeping in view a host of factors that enter the fray of dispute. Such things cannot be done with arithmetical accuracy, hardly needs to be stated.
4.14. He submits that a private interest is to yield to public interest and the public interest as such will outweigh private interest. The present petition having been filed to safeguard the private interest of the land owners, the public interest would lie in the implementation of
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 transmission power plant including water pipeline and as such, the project cannot be brought to a standstill on account of the petitioners, more so all other land owners except the petitioners have accepted the compensation paid, compensation undertaken to be paid and or paid. It is only at the instance of few land owners like the petitioners that the project could not be completed and in this regard, he submits that this Court ought to dismiss the above petitions in the interest of public.
4.15. He relies upon the decision of the Hon'ble Apex Court in Ramniklal N. Bhutta v. State of Maharashtra6, para 10 which is reproduced hereunder for easy reference:
10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic 6 (1997) 1 SCC 134 : 1996 INSC 1337
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 -- indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non- compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 4.16. By relying on the above decision, he submits that any injury or claim of the petitioner always be compensated in terms of money, however the delay which would be caused in implementation of the project cannot be so compensated which would adversely affect the interest of the general public.
4.17. In Godrej & Boyce Manufacturing Co. Ltd.
v. State of Maharashtra7, para 298 to 312 which are reproduced hereunder for easy reference:
DISCRETIONARY POWERS OF HIGH COURT UNDER ARTICLE 226 OF CONSTITUTIONAL OF INDIA
298. We shall now consider that even if there are any irregularities in the procedure followed by the respondents in acquiring the writ property for Infrastructural Project, whether Court can exercise its discretionary power under Article 226 of the Constitution of India and to interfere with the Infrastructural Project of public importance or that no interference is warranted since the petitioner would be compensated in terms of money by seeking enhancement of compensation under Section 64 of the Fair Compensation Act or not.
299. The Supreme Court in case of Shayara Bano (supra) has held that vires of a legislation may 7 2023 SCC OnLine Bom 341
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 also be challenged on the ground of "manifest" arbitrariness under Article 14 of the Constitution of India. A party who challenges the constitutional validity on the ground of the arbitrariness, must specifically plead by giving cogent and sufficient reasons in support of such a contention. A perusal of the pleadings filed by the petitioner on the aspect of constitutional validity of the proviso to Section 25 of the Fair Compensation Act indicates that the petitioner has not pleaded the ground of "manifest" arbitrariness at all. In our view, no enactment can be struck down by just saying that it is merely arbitrary or unreasonable or irrational. Mr. Seervai, learned senior counsel for the petitioner did not dispute that the the Bullet Train Project is Infrastructural and Public Project of a national importance.
300. In our view in case of procedural difficulties, if any, in acquiring the writ property, it would at the most affect the quantum of compensation and not validity of acquisition. The petitioner would be compensated while considering the claim for enhancement under Section 64 of the said Fair Compensation Act. The irregularities, if any of this nature, in following second part of Section 25 of the said Fair Compensation Act would not vitiate the acquisition of the writ property.
301. In our view, the powers of the Court under Article 226 of the Constitution of India are discretionary and merely because there are certain alleged irregularities in the procedure required to be followed while acquiring the writ property, the Court cannot exercise discretionary power in view of the fact that the said Bullet Train Project being Infrastructural and Public Project of national importance. The Supreme Court in case of Ramniklal N. Bhutta (supra) relied upon by Mr. Kumbhakoni, learned senior counsel for the respondent nos. 1, 3, 4 and 5 has held that our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract Foreign Direct Investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian Tigers", e.g., South Korea, Taiwan and Singapore.
302. It is held that however, recognized on all hands that the infrastructure necessary for sustaining such a
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay. It is held that the persons affected however can challenge the acquisition proceedings in Courts. The challenge to the acquisition proceedings in Courts are generally in shape of writ petitions filed in High Courts. It is held that whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power for granting stay/injunction. The power under Article 226 of Constitution of India will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. It is held that in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 of the Constitution of India indeed any of their discretionary powers.
303. It is held that it may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong but quashing the acquisition proceedings is not the only mode of redress. In our view the Bullet Train Project is a Infrastructural Project of national importance, a large numbers of public would be benefited and would have saved other benefits for betterment of this country. The principles laid down by the Supreme Court in case of Ramniklal N. Bhutta (supra) apply to the facts of this case. We are respectfully bound by the principles laid down by the Supreme Court in the said judgment. Mr. Seervai, learned senior counsel for the petitioner could not distinguish the judgment of the Supreme Court in case of Ramniklal N. Bhutta (supra).
304. During the course of his argument, learned ASG invited our attention to various averments and the
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 documents from the detailed affidavit in reply filed by the respondent nos. 2 and 6 and also furnished various details of the Bullet Train Project undertaken by the Government, the features of the said project, the benefits of the said project to the large number of public, steps taken so far in furtherance of the said acquisition of the writ property. Learned ASG pointed out that the said Bullet Train Project is being carried out in collaboration with funding partner Japan International Corporation Agency (JICA) and the Social Impact Assessment has already been carried out by JICA. The objective of Social Impact Assessment as provided under Section 8(2) of the Fair Compensation Act, 2013 is to enable the appropriate Government to recommend such area of acquisition, which ensures- (i) minimum displacement of people, (ii) minimum disturbance to the infrastructure, ecology; and (iii) minimum adverse impact on the individuals affected.
305. It is pointed out that the said Bullet Train Project has been declared as Vital Infrastructure Project by Government of Maharashtra vide Gazette Notification dated 18th May, 2018. The length of this High Speed Rail Corridor is 508.17 km (approximately) and will have 12 stations. Out of the 508.17 kms, a portion of 348.03 is going to be in the State of Gujarat, 4.5 kms in Union Territory of Dadra & Nagar Haveli and 155.64 kms in the State of Maharashtra. The railway line would pass through Mumbai, Thane and Palghar districts in Maharashtra and the districts of Valsad, Navsari, Surat, Bharuch, Vadodara, Anand, Kheda, Ahmedabad in Gujarat and the Union Territory of Dadra Nagar Haveli. It is pointed out that 92% project length is elevated. There are many benefits of an elevated track. This will ensure no obstruction to natural flow of waters, traffic and movement of farmers. It would greatly improve the safety and security perception against external interference and also reduce land requirement in the project i.e. 17.5m width against 36 m for conventional railway tracks.
306. It is pointed out that the said rail corridor consists of a 21 kms stretch of rail line, which will be underground single tube twin track tunnel, out of which a stretch of 7 kms will be an undersea tunnel located below Thane Creek. We are inclined to accept the submission of the learned ASG that the idea behind this underground section of the rail corridor is to minimize
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 any adverse impact on Thane Creek Flamingo Sanctuary, adjoining mangroves and high rise residential complexes of Mumbai suburban. The tunnel phase is a critical phase of the Project and will take maximum time to construct as compared to all other civil construction packages in the project.
307. We are inclined to accept the submission made by the learned ASG that the said Bullet Train Project after completion will give the country its first High Speed Rail and first undersea tunnel, around 40 meter deep. The Japanese Government has provided financial aid through JICA in the form of Official Development Assistance Loan (ODA) facility. We are inclined to accept the submission made by the learned ASG that the construction of tunnel of 13.2 meter diameter, largest diameter urban tunnel boring works ever undertaken in India. It shall be India's first 7 Kms of undersea tunneling work and is expected to utilize maximum construction period i.e. 5.2 years amongst rest of the sections of the corridor.
308. Learned ASG submitted that the travel time between Mumbai and Ahmedabad will be reduced to 1 hour 58 minutes as against the current travel time of 6 hours 35 minutes (by train) and shall act as a catalyst for economic growth of cities it passes through. The said project will increase inter regional connectivity along the rail corridor and boost the development of satellite towns that host the Bullet Train stations such as Palghar Township Projects of MMRDA.
309. We are inclined to accept the submission made by the learned ASG that the said Bullet Train Project is expected to generate over 90,000 direct and indirect jobs and undertaking skill development and income restoration training for numerous project affected persons. More than 51,000 technicians, skilled and unskilled work force will be required for various construction related activities. We are inclined to accept the submission of the learned ASG that it is expected that this project will serve 92,000 passengers per day per direction by 2053 and the said project is highly instrumental in pushing the 'Make In India' initiative of the Government under which different trade agreements between various Japanese Organizations and NHSRCL, FICCL, CII, ASSOCHAM to bolster technology transfer and in house skilled force developments have been executed.
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310. We are inclined to accept the submission made by the learned ASG that estimated cost for this project is around 1.08 Lakh Crores approximately and that so far an amount of more than Rs. 32,000 Crores has been expended by NHSRCL towards implementation of the project. The land approximately admeasuring 430 hectors is required out of which as of November, 2022, 97% of the land is already acquired. For the underground section between BKC and Thane, all the land parcels required are already in possession of the NHSRCL, save and except the petitioner's land.
311. We are informed that various permissions have been already secured by the respondents such as Forest Clearances, Wildlife Clearances (SNGP, Tungareshwar Wildlife Sanctuary, Thane Creek Flamingo Sanctuary), CRZ clearances and Mangroves cutting clearance, clearances from Dahanu Taluka Environment Protection Authority which have resulted in NHSRCL incurring a cost of Rs. 146 crores. All 28 crossings are already procured from various authorities since this rail corridor traverses through various highways, expressways, rail corridors etc. We are inclined to accept the statement of the learned ASG that more than 85% utility diversion (i.e. diversion work of public utility sources like electricity lines, water lines affected by the project) works are complete in Maharashtra and 100% in the affected tunnel section has been completed.
312. We accept the submission of the learned ASG that the tenders for 100% of civil works in the Maharashtra region have already been floated. In Gujarat, 100% civil works contracts are already awarded and construction is in full swing. In Gujarat, foundation work for 194 kms rail corridor, 9.5 kms of viaduct, 23 kms of girder casting are complete. Construction work of all 8 bullet train in Gujarat are already in full swing. We accept the submission made by the learned ASG that except the land of the petitioner, other lands are already in possession of the Government. The Government has already allotted alternate land. The alignment of the rail corridor sections between BKC and Thane (HSR) in view of the proposal given by the petitioner for alternate land and having been accepted by the respondents, has been altered. The Government is also required to increase additional construction cost and safety costs in view of the writ property being very close to the line.
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 4.18. By relying on the above, he submits a power project is very much essential for better and proper industrialization of the State and the country. Without the water pipeline, the working of the Thermal Power Plant would be adversely affected which would result in lesser electricity being generated, the electrical wires being used to evacuate electricity would arise only after production thereof which would require water pipeline, as such the same being integral to production of electricity, the project is of utmost importance and delay would cause harm and injury to the State.
4.19. For a similar purpose he relies on Judgment in National High Speed Rail Corpn. Ltd. v.
Montecarlo Ltd.8, para 48 which is reproduced hereunder for easy reference:
8(2022) 6 SCC 401 : 2022:INSC:124
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48. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is as such perverse and/or arbitrary and/or suffers from mala fides and/or favouritism, while entertaining such writ petition and/or pass any appropriate interim order, High Court may put to the writ petitioner's notice that in case the petitioner loses and there is a delay in execution of the project due to such proceedings initiated by him/it, he/they may be saddled with the damages caused for delay in execution of such projects, which may be due to such frivolous litigations initiated by him/it. With these words of caution and advice, we rest the matter there and leave it to the wisdom of the Court(s) concerned, which ultimately may look to the larger public interest and the national interest involved.
4.20. In Sooraram Pratap Reddy v. Collector9, para 119, 130, 131-132 which are reproduced hereunder for easy reference:
119. In our judgment, in deciding whether acquisition is for "public purpose" or not, prima facie, the Government is the best judge. Normally, in such matters, a writ court will not interfere by substituting its judgment for the judgment of the Government.
130. Apiic is an instrumentality of State and works as "nodal agency" developing the project which would facilitate socio-economic progress of the State by generating revenues, weeding out unemployment and 9 (2008) 9 SCC 552 : 2008 INSC 1017
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 bringing in new avenues and opportunities for public at large. Development of infrastructure is legal and legitimate "public purpose" for exercising power of eminent domain. Simply because a company has been chosen for fulfilment of such public purpose does not mean that the larger public interest has been sacrificed, ignored or disregarded. It will also not make exercise of power bad, mala fide or for collateral purpose vitiating the proceedings.
131. In our judgment, the respondents are right in submitting that in case of integrated and indivisible project, the project has to be taken as a whole and must be judged whether it is in the larger public interest. It cannot be split into different components and to consider whether each and every component will serve public good. A holistic approach has to be adopted in such matters. If the project taken as a whole is an attempt in the direction of bringing foreign exchange, generating employment opportunities and securing economic benefits to the State and the public at large, it will serve public purpose.
132. It is clearly established in this case that the infrastructure development project conceived by the State and executed under the auspices of its instrumentality (Apiic) is one covered by the Act. The joint venture mechanism for implementing the policy, executing the project and achieving lawful public purpose for realising the goal of larger public good would neither destroy the object nor vitiate the exercise of power of public purpose for development of infrastructure. The concept of joint venture to tap resources of private sector for infrastructural development for fulfilment of public purpose has been recognised in foreign countries as also in India in several decisions of this Court.
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 4.21. In Pratibha Nema v. State of M.P.10, para 31 which is reproduced hereunder for easy reference:
31. On a deep consideration of the respective contentions in the light of the documents and events relied upon and the settled principles adverted to supra, we have no doubt in our mind that the acquisition was thought of with the earnest objective to achieve industrial growth of the State in public interest. Quite apart from the view taken by this Court that acquisition in order to enable a company in the private sector to set up an industry could promote public purpose, we have enough material in the instant case to conclude that the proposed acquisition will serve larger public purpose. It is fairly clear that the State's goal to bring into existence a huge industrial complex housing a good number of diamond-cutting and polishing units has led to the present acquisition. Such industrial complex is compendiously termed as "diamond park". The State Government and its agencies including the Nigam acted within the framework of the "Industrial Policy and Action Plan, 1994" in taking the decision to develop a diamond park complex. Para 2.22 of the Industrial Policy specifically states that "the diamond park will be developed in the State for industries based on diamond-
cutting". Mineral-based industries have been brought within the scope of "thrust sector". Export-oriented units will be specially encouraged, according to the policy. The policy further states that the Nigam will work as a nodal agency for the development of large and medium industries in the State and will play the role of a coordinator for the development of industrial infrastructure in growth sectors in partnership with the private sector and industrialists' associations. The reference to the Industrial Policy is found in the resolution passed at the meeting of the Nigam on 23- 11-1995 and the letter of the General Manager, District Industries Centre while forwarding the proposal for acquisition to the District Collector, Indore. The District Collector while seeking the approval of the Commissioner stressed that prestigious exporters from 10 (2003) 10 SCC 626 : 2003 INSC 344
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 India as well as other foreign countries were likely to establish their units in the diamond park which would generate a good deal of foreign exchange and create employment potential. The State Government by its communication dated 18-1-1996 accorded sanction in principle for acquiring the private land measuring 73 hectares in Rangwasa village "for industrial purpose" in order to set up a diamond park. Thus, the considerations of the Industrial Policy and development weighed prominently with all the authorities concerned while processing the proposals. It is clear from the stand taken by the Nigam in the counter-affidavit and the enquiry report of the Land Acquisition Collector that AKI Ltd. and Rosy Blue of Antwerp are not the only entrepreneurs who would get the land in the proposed diamond park area. In the report of the Land Acquisition Officer, it is specifically mentioned that the land is proposed to be allotted to 12 industrial units after being satisfied about their capacity and bona fides. Our attention has been drawn by the learned Advocate General to the layout plan in which 12 plots covering an area of 57 hectares are laid out. The remaining area is earmarked for green belt, housing, common facilities and other amenities. Even the MOU entered into between the Nigam and the two Companies does not give us a different picture. It is specifically stated therein that the Commerce and Industries Department will hand over the land to the Nigam for the development of diamond park and the Nigam in its turn will allot the land required for setting up the units for cutting and polishing diamonds on leasehold basis to the two Companies as well as other companies. The site has been selected by a team of government officials after visiting various places. The fact that AKI Ltd. also requested for allotment of suitable land near Indore and ultimately the land close to Indore was selected, does not necessarily mean that the official team was acting at the dictates of the said Company. Having regard to the strategic location and importance of Indore city, the choice of a site near Indore cannot be said to be vitiated by any extraneous considerations. Entering into the MOU with the two Companies and thereafter initiating requisite steps for the acquisition of the land does not, in our view, detract from the public purpose character of acquisition. The MOU, in ultimate analysis, is in the mutual interest of both the parties and was only directed towards the end of setting up of an industrial complex under the name of "diamond park" which benefits the public at large and incidentally benefits the private
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 entrepreneurs. One cannot view the planning process in the abstract and there should be a realistic approach. Industrial projects and industrial development are possible only when there is initiative, coordination and participation on the part of both the private entrepreneurs as well as the governmental agencies. The active role and initiative shown by AKI Ltd., cannot give a different colour to the acquisition which otherwise promotes public purpose. The expression "foreign collaboration" used in some of the letters which the learned Advocate General states, is somewhat inappropriate, does not negative the existence of public purpose.
4.22. He submits that the only grievance of the petitioner is as regards establishment of water pipeline and there being no grievance or challenge to the authority of the respondent insofar as setting up of a transmission and distribution of lines, the authority of respondent not being in question at the most the matter can relate to the quantum of compensation payable and in this regard any such claim of the petitioners can be made under Section 16 of the ITA.
4.23. On the above grounds, the above writ petitions are required to be dismissed.
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5. Sri.Sudheer Singh R.Vijiapur, learned counsel for respondent No.1, as also learned AGA for respondents No.2 and 4 adopts the submissions of Sri.Shashi Kiran Shetty, learned Senior counsel.
6. Heard Sri.Harshavardhan R.Malipatil, learned counsel for the petitioners, Sri.Shashi Kiran Shetty, learned Senior counsel for respondent No.3. Sri.Sudheer Singh R.Vijapur, learned counsel for respondent No.1, learned AGA for respondents No.2 and 4 and Sri.D.P.Ambekar, learned counsel for respondent No.3. Perused papers.
7. The points that would arise for determination are:
i. Whether by invoking the power and authority under the Indian Telegraph Act, 1885, a water pipeline can be laid without acquiring the land?
ii. Whether the action taken by respondent No.3 in the present matter is unauthorized?
iii. What Order?
8. I answer the above points as under.
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9. ANSWER TO POINT NO.1: Whether by invoking the power and authority under the Indian Telegraph Act, 1885, a water pipeline can be laid without acquiring the land?
9.1. The submission of Sri.Harshavardhan Malipatil, learned counsel for the petitioner is that under the ITA, it is only the telegraph wire which could have been laid on the land of the petitioner and there could be no water pipeline laid in the property of the petitioner.
9.2. Sri.Shashikiran Shetty, learned Senior counsel, has, however, contended that the water pipeline is required for the purpose of effectively running the thermal plant, which is an electrical plant and is a part of the electrical system generating station, which includes all equipment used for the purpose of generating power including dams and other hydraulic works in terms of Sub-section 20, 22 and 30 of the EA 2003 and as such, the electrical line
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 would include water works by way of water pipeline.
9.3. It is not in dispute that in the present matter what is being done by respondent No.3 is for laying of electricity line to evacuate the power generated at the Thermal Power Plant, as also for laying water pipeline from Almatti reservoir to the Thermal Plant for usage thereunder, thus both the electrical line and water line are being used in connection with Koodligi STP though for two different purposes.
9.4. The ITA recognizes electricity lines as also permissible activity to be carried out under the ITA. Though the said Act is a colonial enactment which has been brought into force to enable the colonial power to virtually ride rough shod over the Indian citizens to make use of their land for purpose of telegraph wire or electricity lines which was essential for colonial
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 power to operate, demonstrate and rule in India. Fortunately or unfortunately, the said ITA also has been made use of after independence by the State and its entities for laying of telegraph wires and electricity lines.
Thus, precolonial power enshrined under the ITA continues to be in force and capable of being used by the State and its Authorities so long as the same is in connection with electricity line.
9.5. As afore observed the works carried out by respondent No.3 are for installation of electricity line to evacuate the power and water line to bring water to the pipeline, both being essential for the functioning of an electrical system under Subsection (25) of Section 2 of the E.A. 2003 and generating station as defined under Subsection (30) of Section 2 of E.A. 2003, I am of the considered opinion that they
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 will form part of the power system as defined under Subsection (15) of Section 2 empowering respondent No.3 to exercise powers under the ITA.
9.6. There being no dispute insofar as the electricity line on part of the petitioner and the dispute being only as regards laying of water line, I am of the considered opinion that since the generating plant cannot function without the water being sent through the water pipeline, the same also forming an integral part of electric system, power under the ITA can be exercised for laying such a water pipeline.
9.7. The Hon'ble Orissa High Court in Manoranjan's case has also come to a similar conclusion recognizing that the power conferred under Section 10 of the ITA can be made use of by the authority for putting up electrical line or water line and any person aggrieved by such
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 action can have recourse only to Section 16 of the ITA.
9.8. There are various decisions which have been relied upon by learned Senior Counsel to contend that private interest is to yield to public interest and that the present project is one in the public interest and any delay would cause harm and injury to the respondents, State and the larger general public. There can be no dispute about the said decisions. Those would only arise for consideration if the acquisition as such were challenged.
9.9. In the present case, it is not the acquisition but exercise of powers under the ITA by the jurisdictional authority which is in question.
The exercise of such rights for laying of electric line which would extend to laying of a water line has been considered above, more so with reference to the decision of the Hon'ble Orissa
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 High Court in Manoranjan case (supra). Once there is a power vested with the concerned Authority to exercise under the ITA for laying of a water pipeline below the soil (in this case below three mtrs.), the question of private interest yielding to public interest or otherwise would not arise for consideration.
9.10. Thus, I answer point No.1 by holding that invoking power and authority under the ITA, a water pipeline can also be laid by the Authority under the E.A. 2003 without acquiring the land so long as the said water pipeline is used for operating a generating plant which is part of a electrical system.
10. POINT NO.2: Whether the action taken by respondent No.3 in the present matter is unauthorized?
10.1. In view of my answer to point No.1, the action on part of respondent No.3 in laying water
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 pipeline from Alamatti reservoir to power plant cannot be said to be unauthorized. Again as aforesaid the water pipeline being integral part of generating plant and electrical system, the water being used in the process of generating electricity, same would come within the purview of permitted activity under ITA read with E.A. 2003.
10.2. The said action on part of respondent No.3 being authorized as per submission of Sri.Shashi Kiran Shetty, compensation having been paid for the said purpose, if at all the petitioners are aggrieved by the quantum of compensation paid, it is for the petitioners to exercise its remedy under Section 16 of the ITA and seek for more compensation.
11. ANSWER TO POINT NO.3: What Order?
11.1. In view of my answer to points No.1 and 2having found the action on part of respondent
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NC: 2023:KHC-K:8430 WP No. 200622 of 2016 C/W WP No. 200623 of 2016 WP No. 200624 of 2016 WP No. 200625 of 2016 No.3 is proper and authorized, the petitioners not having made out any ground, the petitions stand dismissed reserving liberty to the petitioners to agitate their claims under Section 16 of the Indian Telegraph Act, 1885.
Sd/-
JUDGE LN List No.: 19 Sl No.: 1