Gujarat High Court
Deceased Babubhai Jerambhai Raiyani ... vs Gujarat Energy Transmission ... on 5 December, 2024
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/728/2013 JUDGMENT DATED: 05/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 728 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
YES
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DECEASED BABUBHAI JERAMBHAI RAIYANI THROUGH HEIRS & ORS.
Versus
GUJARAT ENERGY TRANSMISSION CORPORATION & ANR.
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
MR. NISHIT P GANDHI(6946) for the Appellant(s) No. 1
MR DIPAK R DAVE(1232) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/12/2024
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN) Captioned appeal is directed against the judgment dated 17.12.2012, Exh.150 passed by the learned Principal Senior Civil Judge, dismissing the Special Civil Suit No. 61 of 2000 (hereinafter referred to as 'the suit in question') filed by the appellant - plaintiff (hereinafter referred to as the 'plaintiff'). The plaintiff had filed a suit in question, inter alia, praying for compensation of Rs.45 lac from the defendants - Gujarat Energy Transmission Corporation and another (hereinafter referred to as the 'defendants').
2. The facts, in nutshell, are that the plaintiff and his brother - Ranchhodbhai Jerambhai are the owners and occupiers of the ancestral land bearing survey no.439/2, situated in the city of Page 1 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined Gondal and located on the eastern side of Jetpur Road, which was partitioned equally and the plaintiff was allotted land admeasuring acre 2 and 20 gunthas (hereinafter referred to as the 'land in question'). Somewhere in the year 1979, 220 K.V. Gondal - Jetpur line was erected, as per the provisions of Section 42 of the Indian Electricity Act, 1948 (hereinafter after referred to as the 'Act of 1948') and was passing through the land in question.
3. Subsequently and in the years 1996 and 1997, the plaintiff submitted applications under the provisions of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as 'the Code'), seeking conversion of the land from agriculture to non-agriculture which came to be granted vide order dated 21.04.1997 containing certain terms and conditions. It is thereafter, that the plaintiff started developing the land in question and in the process, had put up certain construction near the Jetpur - Gondal line, which led to the issuance of notice dated 21.11.1998 by the defendants. The plaintiff was directed to stop the construction, followed by filing of Regular Civil Suit no.55 of 2001, which came to be decreed vide judgment dated 22.01.2004. In the interregnum, the plaintiff had filed suit in question, inter alia, seeking direction against the defendants not to restrain the plaintiff to utilise the land or in alternative to pay compensation of Rs.45 lac. The suit came to be rejected vide impugned judgment dated 17.12.2012, Exh.150 (hereinafter referred to as "the impugned judgment") and hence, the captioned appeal.
4. Mr Nishit P. Gandhi, learned advocate for the plaintiff submitted that as the defendants tried to restrain the plaintiff from using the open and peaceful usage of the land in question, that the Page 2 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined suit was filed. Evidence was produced on the record; however, the learned Judge, did not properly consider the evidence while passing the impugned judgment. It is submitted that it is not in dispute that the plaintiff is the owner of the land in question. It is also not in dispute that the high tension (HT) electricity line of 200 K.V. is passing through and as a result, the land in question has been rendered unusable. It is submitted that plaintiff is required to keep 18.00 mtrs. on either side, i.e. total 36.00 mtrs. of land open and thereby, depriving him to enjoy the possession and that too without there being any acquisition of the land in question. Such a course adopted by the defendants, is completely without jurisdiction and authority of law.
4.1 It is submitted that possibly, the defendants have invoked the provisions of Rule 80 of the Indian Electricity Rules, 1956 (hereinafter referred to as the 'Rules of 1956'), which otherwise, is not available for issuing the notice dated 21.11.1998. Besides, there is no proceeding initiated by the District Collector for breach of any of the conditions contained in the NA order. It is further submitted that neither the land in question is acquired by the defendants nor is there anything to suggest that the compensation was paid to the plaintiff at the time of erection of HT line. Therefore, the defendants either shall remove their overhead HT line passing over the land in question or compensate the plaintiff as prayed, for rendering the land in question unusable.
4.2 While concluding, it is submitted that the learned Judge has failed to appreciate the correct facts. Even issues have not been properly framed considering the controversy in question. The learned Judge, has failed to appreciate that the plaintiff is entitled to Page 3 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined reasonable compensation. Considering the evidence on record, so also the submissions, the present appeal deserves to be allowed.
5. Per contra, Mr Dipak R. Dave, learned advocate for the defendants, while vehemently opposing the appeal has submitted that back then in the year 1979, HT line was erected and at no point of time, there was any grievance or objection raised about the compensation. It was only in the year 1997 when NA permission was granted, issue triggered because of the breach of conditions contained in the NA order. NA permission contained certain terms and conditions and one of which was of leaving 18.00 mtrs. of land open on either side, i.e. total 36.00 mtrs., coupled with construction of a small wall of 1.6 ft., with a view to seeing that the heavy vehicles do not pass through the HT line.
5.1 It is submitted that disregarding the condition, the plaintiff started putting up the construction which led to the issuance of notice dated 21.11.1998, cautioning the plaintiff not to put up the construction; Special Civil Suit no.55 of 2001 was filed by the defendant with a specific prayer and the learned Civil Judge (Junior Division), Gondal, directed the plaintiff not to put up any construction below the HT line and in case if there is any construction, it shall be removed. The said judgment, has attained finality, it having been accepted by the plaintiff.
5.2 It is submitted that the suit in question filed by the plaintiff, also came to be decreed. It is submitted that the defendants have exercised the powers under the Act of 1948 read with the Indian Telegraph Act, 1885 and as per the provisions, the defendants have full authority to erect or lay down any transmission line. The line was erected in the year 1979 when, neither the father nor the Page 4 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined plaintiff has raised any objection and could not have inasmuch as, there is no pole erected, but only the overhead line is passing through the land in question. It is further submitted that if at all the plaintiff had any grievance, it ought to have been raised in the year 1979 claiming damages. Having not raised, the plaintiff could not have filed the suit seeking compensation. Furthermore, the plaintiff by putting up the construction, had committed breach of Rule 80 of the Rules of 1956 as, construction below the HT line, would put the human lives at risk.
5.3 It is next submitted that the issues were accordingly formulated. So far as the ownership is concerned, the issue has been answered in affirmative; whereas, the issue no.2 "Whether plaintiff proves that the defendant has tried to acquire the possession of the land without due process of law by giving a notice dated 21/11/1998 to the plaintiff", was answered in negative. Clearly, the erection of transmission line is strictly in accordance with law. It is submitted that the learned Judge has clearly held that the plaintiff has failed to show that the defendants have acquired the possession of the suit land without any authority of law. It has been held and observed that defendants being engaged in the transmission business, does not require to acquire the possession of the land. It is therefore, submitted that no error has been committed by the learned Judge in dismissing the suit of the plaintiff.
6. Heard the learned counsel appearing for the respective parties and considered the documents made available on record, so also the paper-book.
7. Land bearing survey no.439/2 admeasuring acre 5.00 gunthas was partitioned between the plaintiff and his brother to the extent of Page 5 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined acre 2 and 20 gunthas each. The said fact has been recorded in the village form no.6 vide entry no.369 dated 29.06.1987. Prior to the partition in the year 1979, defendants have erected HT line, as per the provisions of the Act of 1948, which was passing over the land in question. After the year 1979, no steps were taken by the plaintiff or his father. Since the plaintiff was desirous of developing the land in question, application was filed before the District Collector under the provisions of the Code, seeking NA permission and vide order dated 21.04.1997, District Collector, in exercise of the powers under Section 65 of the Code, granted the NA permission for residential purpose on various terms and conditions and the plaintiff, was obliged to observe the same.
8. Relevant and important would be condition no.12, which was in connection with the letter dated 22.11.1996 addressed by the Executive Engineer, Gujarat Electricity Board, Gondal. As per the said condition, it was made clear that at the time of putting up the construction as per the plan, from the centre, on either side, 18 mtrs. of land shall be kept open coupled with a construction of small wall of 1.6 ft. with a view to seeing that the heavy vehicles do not pass through or beneath the HT line. The plaintiff has also filed an affidavit dated 20.02.1997 agreeing to it. After the receipt of NA permission, plaintiff started putting up the construction. It appears that the plaintiff in disregard of the condition no.12, extended its construction, which led to the issuance of notice dated 21.11.1998, by the defendants, requiring the plaintiff to stop the construction. Being aggrieved, the plaintiff filed a suit being Special Civil Suit no.61 of 2000; whereas, defendants had filed Regular Civil Suit no.55 of 2001 before the Court of Civil Judge (Junior Division).
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9. Before adverting to the suit in question, it would be somewhat relevant to discuss the gist of Regular Civil Suit no.55 of 2001 filed by the defendants. One of the Issues formulated was, namely, whether the plaintiffs prove that defendant has any right to put up the construction of pillars on the land of his ownership beneath the HT line? It was held by observing that the defendant, i.e. the plaintiff herein had no right to erect the pillars beneath the HT line over the land in question of his ownership and the action of the defendant, i.e. the plaintiff herein was also declared as illegal, null and void. Pertinently, the said judgment dated 22.01.2004 in Regular Civil Suit no.55 of 2001, has not been challenged by the plaintiff (defendant in Regular Civil Suit no.55 of 2001) and has been accepted.
10. While in the suit in question, issues formulated are thus:-
"1. Whether the plaintiff prove that he is the owner and in possession of the ancestral land bearing S. No. 439/2 A.2-20 Gunthas situated at Jetpur Road in front of 220 K.V.Station at Gondal ?
2. Whether the plaintiff proves that the defendant has tried to acquire the possession of that land without due process of law by giving a notice dated 21/11/1998 to the plaintiff ?
3. Whether the defendants prove that plaintiff's suit is time barred ?
4. Whether the defendants prove that plaintiff's suit is bad for mis-joinder of necessary party and non-joinder of necessary party ?
5. Whether the defendant proves that 220 k.v. Line is already in existence in plaintiff's land ?
6. Whether the plaintiff is entitled for the reliefs as prayed for ?
7. What order and decree ?"
Issue nos.1 and 5 were answered in affirmative; whereas, the Page 7 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined issue nos.2 to 4 and 6 were answered in negative; so far the issue no.1 is concerned, there is not much of a dispute. The resistance, is substantially against issue nos.2 and 5 which have been answered in negative and in affirmative respectively.
11. In view of the above, the issue which arises for the consideration of this Court is as to whether the defendant was justified in issuing the notice dated 21.11.1998 and requiring the plaintiff to not put up construction on either side of the HT line. Undisputably, the line was erected in the year 1979 and there is nothing on record to substantiate any resistance lodged by the plaintiff or his father. NA permission is also undisputed, so also the conditions contained therein. The plaintiff was cross-examined at Exh.29 and has conceded to the fact that the line was erected 25 to 30 years back and HT line was already in existence when NA permission was applied. Besides, it is also conceded that NA order dated 21.04.1997, has been accepted and no appeal has been filed before any revenue authorities challenging the condition no. 12. The plaintiff has also conceded to the fact of condition no.12 requiring the plaintiff to leave on either side, 18 mtrs. of space (total 36 mtrs.) and putting up construction of a small wall of height of 1.6 ft. Besides, it is also conceded that no appeal has been filed against the judgment dated 22.01.2004 passed in Regular Civil Suit no.55 of 2001. It is also not in dispute that the line has been erected by the defendants in accordance with the provisions of the Act of 1948 and the Rules which was never the point in issue. Plaintiff has also accepted that the suit has been filed after almost 20 years of erection of the line. Therefore, it is not in dispute that NA permission contained various conditions and the plaintiff has accepted those conditions including condition of leaving open space of 18 mtrs. on either side of the HT line. The plaintiff has also agreed to put up the construction of wall of 1.6 ft.
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12. In view of the above discussion the issue is also, whether the learned Judge has committed an error in concluding that the plaintiff has failed to prove that defendant has tried to acquire the possession of the land in question without due process of law. The learned Judge while deciding the issue nos.2 and 5 has considered the condition contained in the NA order more particularly, condition no.12 and also the fact about the plaintiff agreeing to leave the open space on either sides of the HT line as indicated in the layout plan coupled with the construction of wall.
13. The learned Judge, has taken note of admission on the part of the plaintiff that the HT line was in existence since last more than 35 years. Acceptance by the plaintiff, during the course of NA proceedings by the Collector was also considered and the condition of leaving space on either side of the HT line, so as to avoid any mishap in future. The learned Judge was of the considered opinion that the Collector, Rajkot has sanctioned the conversion of the land in question into non-agriculture land and approving the layout plan on fulfillment of conditions. The learned Judge while dealing with issue nos. 2 and 5, in paragraph 14 of the impugned judgment has observed thus:-
"14.ISSUES NO.2 & 5: It appears from the records that the overhead high tension electric line is passing from the land of the plaintiff. The plaintiff has raised contention that it is very high tension electric line and it is very endanger to human life and there are possibilities to cause damage to his crops and death of any human being. Moreover, before installation of high tension line, the defendants out to have paid compensation to the plaintiff. On the 2 other side defendants have contended that before converting the suit land into N.A. the electric line was in existence. The plaintiff has admitted in his. cross examination that before 35 years the electric line of the defendants was in existence. He has also admitted that during the course of N.A. procedure, the Collector, Rajkot has granted such conversion subject to some of the conditions to spare and keep some space empty and construction should be made by Page 9 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined leaving some of the land so as to avoid mishap in future. The plaintiff has also admitted said conditions vide is affidavit dated 20/01/1997 and he has admitted such facts in his cross examination. On careful verification of the order of Collector, Rajkot dated 21/04/1997, it clearly appears that he has sanctioned conversion of suit land into non-agricultural land subject some of the conditions to be observed by the plaintiff and he has to make construction in the land in question according to approved lay out plan. On page No.4 para-12, which reads as under:
૧૨. વંચાણ ૬ ના ૬ ના ના પત્ર અનુસાર સવાલવાળી જમીનમાંથી ગુજરાત સવાલવાળી જમીનમાંથી ગુજરાત જમી જમીનમાંથી ગુજરાત નમાંથી જમીનમાંથી ગુજરાત ગુજર સવાલવાળી જમીનમાંથી ગુજરાત ાત વિ દ્યુત બોર્ડની જમીનમાંથી ગુજરાત અતિત ભાર સવાલવાળી જમીનમાંથી ગુજરાત ે દબાણવાળી ૨૨૦ કે દબાણ ૬ ના વાળી જમીનમાંથી ગુજરાત ૨૨૦ કે કે દબાણવાળી ૨૨૦ કે .વી જમીનમાંથી ગુજરાત . જે દબાણવાળી ૨૨૦ કેત પુર સવાલવાળી જમીનમાંથી ગુજરાત -ગો ંર્ડલ લાઈન નંબર સવાલવાળી જમીનમાંથી ગુજરાત : ૧ અને દબાણવાળી ૨૨૦ કે ૨ પસાર સવાલવાળી જમીનમાંથી ગુજરાત થાય છે છે દબાણવાળી ૨૨૦ કે . જે દબાણવાળી ૨૨૦ કેથી જમીનમાંથી ગુજરાત સદર સવાલવાળી જમીનમાંથી ગુજરાત હું જમી જમીનમાંથી ગુજરાત નમાં બાંધકામ કર સવાલવાળી જમીનમાંથી ગુજરાત ત ી જમીનમાંથી ગુજરાત વખત ે દબાણવાળી ૨૨૦ કે નકશામાં દશાવ્ય છેા પ્રમાણે ૨૨૦ કે કે દબાણવાળી ૨૨૦ કે .વી જમીનમાંથી ગુજરાત . જે દબાણવાળી ૨૨૦ કેત પુર સવાલવાળી જમીનમાંથી ગુજરાત -ગો ંર્ડલ ર્ડબ્બલ સર્કિકટ લાઈનના સેન્ટરની બંને બાજુએ લાઈનના સે દબાણવાળી ૨૨૦ કેન્ટ લાઈનના સેન્ટરની બંને બાજુએર સવાલવાળી જમીનમાંથી ગુજરાત ની જમીનમાંથી ગુજરાત બંને દબાણવાળી ૨૨૦ કે બાજુએ ૧૮.૦ કે૦ કે-૧૮.૦ કે૦ કે : અઢાર સવાલવાળી જમીનમાંથી ગુજરાત -અઢાર સવાલવાળી જમીનમાંથી ગુજરાત એટ લાઈનના સેન્ટરની બંને બાજુએલે દબાણવાળી ૨૨૦ કે કે દબાણવાળી ૨૨૦ કે કુ લ ૩૬ ના .૦ કે૦ કે મી જમીનમાંથી ગુજરાત ટ લાઈનના સેન્ટરની બંને બાજુએર સવાલવાળી જમીનમાંથી ગુજરાત જમી જમીનમાંથી ગુજરાત ન છોર્ડવાની જમીનમાંથી ગુજરાત ર સવાલવાળી જમીનમાંથી ગુજરાત હે દબાણવાળી ૨૨૦ કેશે દબાણવાળી ૨૨૦ કે.
આ છોડેલ જમીનની બંને સાઈડમાં ૧ છોર્ડે દબાણવાળી ૨૨૦ કેલ જમી જમીનમાંથી ગુજરાત નની જમીનમાંથી ગુજરાત બંને દબાણવાળી ૨૨૦ કે સાઈર્ડમાં ૧-૬ ના " : દોઢ : ફુટ લાઈનના સેન્ટરની બંને બાજુએ ઉચ ં ાઈની જમીનમાંથી ગુજરાત પથ્થર સવાલવાળી જમીનમાંથી ગુજરાત ની જમીનમાંથી ગુજરાત પાળી જમીનમાંથી ગુજરાત બનાવવાની જમીનમાંથી ગુજરાત ર સવાલવાળી જમીનમાંથી ગુજરાત હે દબાણવાળી ૨૨૦ કેશે દબાણવાળી ૨૨૦ કે. આ છોડેલ જમીનની બંને સાઈડમાં ૧ પાળી જમીનમાંથી ગુજરાત નો હે દબાણવાળી ૨૨૦ કે ત ુ ભાર સવાલવાળી જમીનમાંથી ગુજરાત ે દબાણવાળી ૨૨૦ કે વાહનોને દબાણવાળી ૨૨૦ કે લાઈન ની જમીનમાંથી ગુજરાત ચે દબાણવાળી ૨૨૦ કેથી જમીનમાંથી ગુજરાત પસાર સવાલવાળી જમીનમાંથી ગુજરાત થત ાં અટ લાઈનના સેન્ટરની બંને બાજુએકાવવાનો છે દબાણવાળી ૨૨૦ કે . આ છોડેલ જમીનની બંને સાઈડમાં ૧ છોર્ડે દબાણવાળી ૨૨૦ કેલ જગ્ય છેા પર સવાલવાળી જમીનમાંથી ગુજરાત કોઈપણ ૬ ના જાત નું બાંધકામ કે દબાણવાળી ૨૨૦ કે બી જમીનમાંથી ગુજરાત જા કોઈપણ ૬ ના હે દબાણવાળી ૨૨૦ કે ત ુ જે દબાણવાળી ૨૨૦ કેવા કે દબાણવાળી ૨૨૦ કે ર સવાલવાળી જમીનમાંથી ગુજરાત સ્ત ા તિવગે દબાણવાળી ૨૨૦ કેર સવાલવાળી જમીનમાંથી ગુજરાત ે દબાણવાળી ૨૨૦ કે માટ લાઈનના સેન્ટરની બંને બાજુએે દબાણવાળી ૨૨૦ કે ઉપય છેોગમાં લઈ શકાશે દબાણવાળી ૨૨૦ કે નહી જમીનમાંથી ગુજરાત . સી જમીનમાંથી ગુજરાત ટ લાઈનના સેન્ટરની બંને બાજુએી જમીનમાંથી ગુજરાત સવે દબાણવાળી ૨૨૦ કેના તિનય છેમાનુસાર સવાલવાળી જમીનમાંથી ગુજરાત ર સવાલવાળી જમીનમાંથી ગુજરાત સ્ત ા કે દબાણવાળી ૨૨૦ કે બી જમીનમાંથી ગુજરાત જા કોઈપણ ૬ ના હે દબાણવાળી ૨૨૦ કે ત ુ માટ લાઈનના સેન્ટરની બંને બાજુએે દબાણવાળી ૨૨૦ કે વધાર સવાલવાળી જમીનમાંથી ગુજરાત ાની જમીનમાંથી ગુજરાત જમી જમીનમાંથી ગુજરાત ન છોર્ડવાની જમીનમાંથી ગુજરાત થાય છે ત ો ત ે દબાણવાળી ૨૨૦ કે તિનય છેમ મુજબ વધાર સવાલવાળી જમીનમાંથી ગુજરાત ાની જમીનમાંથી ગુજરાત જમી જમીનમાંથી ગુજરાત ન છોર્ડવાની જમીનમાંથી ગુજરાત ર સવાલવાળી જમીનમાંથી ગુજરાત હે દબાણવાળી ૨૨૦ કેશે દબાણવાળી ૨૨૦ કે. જે દબાણવાળી ૨૨૦ કે મત લબનું અરજદારશ્રીએ ત ાર સવાલવાળી જમીનમાંથી ગુજરાત ી જમીનમાંથી ગુજરાત ખ : ૨૦ કે/૦ કે૧/૧૯૯૭ ના રોજ રજુ કરેલ સોગંદનામા મુજબ અમલ કરવાનો ના ર સવાલવાળી જમીનમાંથી ગુજરાત ોજ ર સવાલવાળી જમીનમાંથી ગુજરાત જ ુ કર સવાલવાળી જમીનમાંથી ગુજરાત ે દબાણવાળી ૨૨૦ કેલ સોગદં નામા મુજબ અમલ કર સવાલવાળી જમીનમાંથી ગુજરાત વાનો ર સવાલવાળી જમીનમાંથી ગુજરાત હે દબાણવાળી ૨૨૦ કેશે દબાણવાળી ૨૨૦ કે.
So, from the plain reading of the order of Collector, Rajkot, it becomes very clear that according to lay out plan, 18.0-18.0 mts. i.e. total 36.00 mtrs. land is required to be left on both the sides of double circuit line of 220. k.v. and 1.6 feet height wall is required to be constructed with a view to prevent passing of heavy vehicles from there and other construction should not be constructed over the left space. Therefore, considering these conditions, the Collector, Rajkot has granted conversion of suit land into non-agricultural land. Moreover, the plaintiff has carried out illegal construction over most of the land i.e. 4246 Sq. Yards land. Therefore, the defendants corporation has issued notice to stop the construction. So, it becomes clear from the record that the plaintiff has committed breach of the conditions laid down by the Collector, Rajkot at the time of conversion of suit land into non-agricultural land. The plaintiff has also admitted this fact in his cross examination that the overhead electric high tension line was in existence since 35 years and prior to the order of collector. so, before carrying any' construction in the land in question, the plaintiff ought to have followed the condition laid down by collector, Rajkot in his N.A. order. But the plaintiff has not left the space as per order of collector and he has invited damage and endanger to the human life by committing breach of Sec. 80(1) and 80(2) of Indian Electricity Rules, 1956. The defendants corporation has also followed the due process of law by issuing notice to plaintiff dated 21/11/1998 to stop his construction as it is endanger to human life and in case of occurrence of any mishap, liability will Page 10 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024 NEUTRAL CITATION C/FA/728/2013 JUDGMENT DATED: 05/12/2024 undefined lie on the plaintiff. So, its a clear due procedure which has been followed by the plaintiff. So far as acquisition of the land in question, plaintiff has failed to show that the defendants are tried to acquire the possession of the suit land because the defendants corporation is a body corporate and engaged in transmission business and does not require to acquire possession of the land. So, in view of above discussion and from the documentary as well as oral evidences, the plaintiff has failed to prove issue No.2 in his favour and on the other side, the defendants have proved the fact that 220 k.v. line is already in existence in plaintiff's land since long."
14. Clearly, it has been concluded by the learned Judge that the defendants have followed the due process of law by issuing notice to stop the construction as it was likely to endanger the human life. While considering the evidence and the documents on record, the learned Judge has concluded that the plaintiff has failed to prove issue no.2 in his favour as against this, the defendants have proved the fact that 220 K.V. line was already in existence since long. The learned Judge, considered that the defendant is body corporate and engaged in transmission business and is not obliged to acquire the possession. Accordingly, the issues were decided. The plaintiff has been unable to point out any error committed by the Court below in deciding the issue nos.2 and 5. Accordingly, in absence of any perversity or illegality pointed out, this Court is of the opinion that the impugned judgment does not warrant interference and the appeal is accordingly dismissed. No order as to costs.
15. Record & proceedings, if received, be sent back to the concerned Court forthwith.
Sd/-
(SANGEETA K. VISHEN,J) Sd/-
(SANJEEV J.THAKER,J) BINOY B PILLAI Page 11 of 11 Uploaded by BINOY B PILLAI(HC00183) on Mon Dec 16 2024 Downloaded on : Fri Dec 20 22:26:35 IST 2024