Madhya Pradesh High Court
Puneet Tiwar vs Revenue Department on 1 March, 2018
-: 1 :-
HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
Writ Petition No.4149 of 2018.
(Puneet s/o Purushottamlal Tiwari v/s State of M.P. And others )
Indore, Dated : 01.03.2018:-
Shri A.K.Sethi, learned Senior Counsel with Shri
Manu Maheshwari, learned counsel for the petitioner.
Shri A.S.Sisodiya, learned Govt. Advocate for the
Respondent Nos.1 to 4 and 9 on advance copy
Shri Vinay Saraf, learned Senior Counsel with Shri Amit Bhatia, learned counsel for the Respondent No.8.on caveat application Heard on the question of admission.
O R D E R THE petitioner has filed the present petition seeking direction to the Respondents to erect the Tower over the land Survey No.26/1 , not over land Survey No.25/1/4 owned by him.
[2] According to the petitioner he is owner of land Survey No.25/1/4 situated in Village Kazi Palasiya, Tehsil and District Indore. The name of the petitioner has been mutated in the revenue records. The Respondent Nos.5 to 7 are Public Sector Undertaking owned by the Government of India and they have decided to lay down the transmission lines. For the said purposes number of Towers are liable to be erected over the private and government land and for which they have authorized and engaged Respondent No.8.
[3] The Respondent No.8 issued a notice dated 27.05.2014 to the mother of the petitioner Smt Usha Tiwari W/O Shri Purushottamlal Tiwari proposing to install the overhead lines as per sanctioned map under the transmission system. The father of the petitioner along with two others -: 2 :- instituted a Civil Suit No.75-A/14 on 17.06.2014. The mother of the petitioner is owner of land Survey No.26/1. The Respondents issued a notice for erection of Tower over the aforesaid land and prapossed to pay the compensation for the loss of crop etc. The copy of notice dated 25.10.2017 is filed as Annexure P/5 followed by another notice dated 07.11.2017. Now the case of the petitioner is that instead of erecting the Tower over the land Survey No.26/1 the Respondents are threatening him to erect the Tower on land Survey No.25/1/4 without issuing any notice and without payment of compensation. Therefore, the present writ petition before this Court.
[4] The Respondent No.8 filed a Caveat and also filed reply in advance. According to the Respondent No.8 they are laying down 765 KV D/C Khandwa Pool - Indore transmission line and one of such location is falling on the land belonging to the petitioner. The Respondent No.8 is empowered to lay down the lines by the Ministry of Power, Government of India under Section 68 of the Electricity Act, 2003 and also conferred powers of Telegraph Authority. The answering Respondent is not liable to acquire the land and empower to use the land for laying down the electricity line. The petitioner at the most is entitled for compensation for the loss of crops and others. It is further submitted that earlier the notice for land Survey No.26/1 was erroneously issued and after spot inspection in presence of the petitioner it was found that the Tower is falling over the land Survey No.25/1/4 hence the notice dated 08.02.2018 was sent to the petitioner but it was returned back to the answering Respondent without service. The entire work has been -: 3 :- completed, except the in the area which is falling over the land of the petitioner . The petitioner is crating obstruction by way of notices and cases one by one . The petitioner is not having any legal or statutory right to obstruct the work hence the writ petition is liable to be dismissed.
Heard learned counsel for the petitioner and respondents.
[5] Initially the Respondent No.8 issued a notice for laying down the line over land Survey No.26/1 which was owned by the mother of the petitioner. Thereafter the Respondent has initiated proceedings for laying down the line over the land Survey No.25/1/4 owned by the petitioner. The main contention of the petitioner is that once the notice was issued for the land Survey No.26/1, then the Respondents cannot use the land bearing Survey No.25/1/4 belonging to the petitioner. They are illegally changing the alignment of the land and using the land of the petitioner bearintg Survey No.25/1/4. Therefore, they are liable to be restrained and they be directed to use the land Survey No.26/1 only. The land Survey No.26/1 was owned by the mother of the petitioner which she has sold by registered sale-deeds dated 21.10.2016 ( Annexures P/3 and P/4). Section 68 of the Electricity Act, 2003 [in brief "the Act of 2003"] authorizes Transmission Company to lay down overhand in accordance with sub-section (2) of Section 68 of the Act of 2003. The appropriate Government shall grant an approval to the Company for the said purpose. Under sub-section (5), the Magistrate or authority specified by the Appropriate Government may direct to remove any tree, structure or object for the purpose of laying down line. Under sub-
-: 4 :-section (6), the compensation is liable to be paid to the interested person in the tree and structure etc. Under Section 164 of the Indian Telegraph Act, 1885, the Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity, may confer power 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 as provided under the Indian Telegraph Act, 1885. The Respondent No.8 is having transmission license granted by the Central Electricity Regulatory Commission, Delhi, therefore, the Respondent No.8 is authorized by the Appropriate Government and the Authority for laying down the lines. Even the petitioner has not challenged the authority of Respondent No.8. According to the Respondent No.8 to install the Towers and the High Tension line as per the sanctioned plan and map, they locate the Towers through GPS coordinate. As per the GPS coordinate the tower no. 46/0 is N22*41'01.1" and E76*00'39.9" one of the Tower is coming on the land Survey No.25/1/4 situated at Village Kazi Palasia, Tehsil and District Indore owned by the petitioner. This fact came to the knowledge of the Respondent No.8 first time on 08.11.2017. Therefore, the notice was issued to the petitioner that instead of Tower over the land Survey No.26/1, now the land Survey No.25/1/4 is required (Annexure R-1). The petitioner objected the said and the matter was taken up by the Sub Divisional Officer (Revenue). The Sub Divisional Officer appointed Team of Revenue Inspectors and Patwari to conduct the survey and -: 5 :- submit the report. The Committee submitted the report on 18.12.2017 that no construction work is going on land Survey No.26/1. Thereafter another Team was constituted who conducted the survey on 27.12.2017 in presence of the petitioner; employees of Transmission Company and the Supervisor of Respondent No.8 and also prepared a drawing sheet on the basis of GPS Coordinate and found that the land Survey No.25/1/4 is proposed for the erection of Tower. During pendency of these dispute, the petitioner has constructed a temporary tin shed without any permission. The Sub Divisional Officer (Revenue) vide order dated 22.01.2018 has granted permission to the Respondent No.8 to use the land Survey No.25/1/4 and finally closed the matter. The relevant part of the report is reproduced below :-
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[6] The Government of India, Ministry of Power vide letter dated 15th October, 2015 has formulated the guidelines for determining the compensation towards the damages as stipulated under Sections 67 and 68 of the Act of 2003 read with Sections 10 and 16 of the Indian Telegraph Act, 1885. The amount will be payable only for transmission lines supported by a tower base of 66 KV as follows :-
"(i) Compensation @ 85% of land value as determined by District Magistrate or any other authority based on Circle rate/Guideline value/Stamp Act rates for tower base area (between four legs) impacted severaly due to installation of tower/pylon structure;
(ii) Compensation towards diminution of land value in the width of Right of Way (RoW) Corridor due to laying of transmission line and imposing certain restriction would be decided by the States as per categorization/type of land in different places of States, subject to a maximum of 15% of land value as determined based on Circle rate/Guidelines value/Stamp Act rates;
(iii) In areas where land owner/owners have been offered/accepted alternate mode of compensation by concerned corporation/Municipality under Transfer Development Rights (TDR) policy of State, the licensee/Utility shall deposit compensation amount as per
(i) & (ii) above with the concerned Corporation/ Municipality/Local Body or the State Government;
(iv) For this purpose, the width of RoW corridor shall not be more than that prescribed in the table at Annex-2 and shall not be less than the width directly below the conductors."
-: 8 :-[7] Therefore, the apprehension and allegation of the petitioner is unfounded and baseless. The Respondent No.8 has not changed the alignment of the line illegally to use the land Survey No.25/1/4. A Team was constituted by the Sub Divisional Officer (Revenue) who conducted the inspection of the the spot and prepared the map on the basis of GPS Coordinate and found that the land Survey No.25/1/4 is required. There cannot be any change in the alignment of the High Tension electricity which runs into kilometers and for change of location of one Tower the entire alignment of the HT line cannot be changed technically. The petitioner is having right of compensation as per the guidelines.
[8] In the case of Power Grid Corporation of India Limited v/s Century Textiles and Industries Limited [(2017) 5 SCC 143], the Apex Court has considered the provisions of Sections 10, 15 and 16 of the Telegraph Act, 1885 and Sections 68, 69 and 164 of the Act of 2003 has held as under :-
21. It is not in dispute that in exercise of powers under the aforesaid provision, the appropriate Government has conferred the powers of telegraph authority vide Notification dated 24-12-2003 exercisable under the Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central transmission utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central transmission utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This coupled with the fact that Power Grid is treated as authority under the Telegraph Act, 1885, it acquires all such powers which are vested in a telegraph authority under the provisions of the Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest.
Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well-being/progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme of the Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as -: 9 :- it is, for laying down the electricity transmission lines.
22. Powers of the telegraph authority conferred by Sections 10, 15 and 16 of the Telegraph Act, 1885, stand vested in and are enjoyed by the Power Grid. These provisions are reproduced below:
"10. Power for telegraph authority to place and maintain telegraph lines and posts.--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:
Provided that--
(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;
(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and
(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and
(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
* * *
15. Disputes between telegraph authority and local authority.--(1) If any dispute arises between the telegraph authority and a local authority in consequence of the local authority refusing the permission referred to in Section 10 clause (c), or prescribing any condition under Section 12, or in consequence of the telegraph authority omitting to comply with a requisition made under Section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the Central Government may appoint either generally or specially in this behalf.
(2) An appeal from the determination of the officer so appointed shall lie to the Central Government; and the order of the Central Government shall be final.
16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.--(1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. (2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code, 1860 (45 of 1860).
(3) If any dispute arises concerning the sufficiency of the -: 10 :- compensation to be paid under Section 10 clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
(5) Every determination of a dispute by a District Judge under sub- section (3) or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
(emphasis supplied)
23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
24. As Power Grid is given the powers of telegraph authority, Rule 3(1) of the 2006 Rules ceases to apply in the case of Power Grid by virtue of execution clause contained in sub-rule (4) of Rule 3 which reads as under:
"3. (4) Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act."
25. We, thus, have no hesitation in rejecting the argument of the writ petitioner that the impugned action of the Power Grid was contrary to the provisions of the Electricity Act, 2003.
26. We also do not find that the action of the Power Grid, in the given circumstances, by not shifting the transmission lines was arbitrary. From the facts noted above, it becomes apparent that not only it was unfeasible to change the alignment as almost entire work had already been completed by the time the writ petitioner started protesting against this move, even otherwise, the Power Grid has given sufficient explanation to point out that all relevant factors/aspects were kept in mind while laying down the impugned transmission lines. Such transmission lines had to be in straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity transmission is usually laid or crossed -: 11 :- over agricultural land where minimum extent of land gets utilised for erecting towers and where agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds, etc. while laying down these transmission lines. It is only when it becomes inevitable that towers are placed on the private lands to the minimum and least extent possible. That is what was tried to achieve in the instant case. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 m from the 400 kV line (already existing) or the tower structure. Mining of limestone can be taken up by adopting the methods other than use of explosive/blasting -- without damage to the tower foundation/tower structure or the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damage to the line or tower. This aspect has also been taken note of by the learned Single Judge of the High Court in the judgment dated 11-3-2008. The Division Bench did not differ with any of these findings.
[9] In view of the above discussion no interference is warranted in this matter . At the most the respondent no. 8 is directed to issue fresh notice to the petitioner for his land Sr no. 25/1/4 only for the purpose of assessment ans payment of compensation as per aforesaid guidelines . The writ petition filed by the petitioner is hereby dismissed. Hence, the same is accordingly dismissed.
No order as to cost .CC as per rule.
[ VIVEK RUSIA ] JUDGE (AKS) Digitally signed by Anl Kumar Sharma Date: 2018.03.24 13:00:27 +05'30'