Gujarat High Court
Mer vs Dy.Engineer(Construction) on 9 March, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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SCA/3067/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3067 of 2010
======================================
MER
BHIMA SUMRA & 3 - Petitioners
Versus
DY.ENGINEER(CONSTRUCTION)
& 1 - Respondents
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Appearance
:
MR
ASHISH M DAGLI for Petitioners.
MR DIPAK R DAVE with JAYESH A
KOTECHA for Respondents.
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 09/03/2010
ORAL ORDER
The petitioners have filed this petition under Article 226 of the Constitution of India praying for the direction to the respondent No.2 to forthwith reconsider the decision of permitting the respondent Gujarat Energy Transmission Corporation Limited (for short 'GETCO') for installation of 66 KV line from Chhaya to Rangbai temple in the facts and circumstances of the case. The petitioners have also prayed for the direction to the respondent Corporation to grant an opportunity of hearing to the petitioners before actual commencement of the work of installation of 66 KV line from Chhaya to Rangbai in the interest of justice.
Heard Mr. Ashish Dagli, learned advocate appearing for the petitioners and Mr. Dipak R. Dave, learned advocate appearing on Caveat for the respondents.
It is the case of the petitioners that the respondents are intending to install 66 KV electric line from the agricultural field of the petitioners and for installation of lines, the respondent No.2 to whom the work order was issued by the respondent No.2 i.e. Paschim Gujarat Vij Company Limited and the respondent No.2 has suggested work to be done in a way by which the total 11.5 Kms. construction cost would be taken out as against the same, from the same place, the line can be permitted with distance of 7.5 Kms.
Mr. Ashish Dagli, learned advocate appearing for the petitioners has submitted that the line was suggested to be installed through the agricultural fields of the petitioners. The petitioners have also lodged their objection to the Dist. Collector, Porbandar to the effect that on account of installation of heavy line, the petitioners fields are adversely affected. The Contractor has deliberately not taken into consideration the distance of 7.5 Kms. It is only with a view to see that if some more land is used, he can get more amount and by projecting wrong device and wrong method and projecting of map which is favourable to him, the process of work is initiated. He has further submitted that the petitioners are not only seriously prejudiced but also their fields are virtually destroyed and it would be a great loss to the Company also as huge amount is taken under the guise of installation of line and hence, the petitioners have approached this Court.
Mr. Dagli has further submitted that the area is a residential area and in case land is to be converted into non-agriculture, permission cannot be granted to erect the pole or lay down the foundation in the agricultural field. Representation was made to the Collector long back which has still not been decided and hence, appropriate direction be issued to the Collector to decide the representation. He has further submitted that when the proposed line is to be erected with half of the distance, there is no necessity of going ahead with the work suggested by the respondent No.1. Even as per the respondent's own case, area is about 15 Kms. And more than Rs.475 Lacs are involved. Actually, the work for the said area would have been completed within half of the cost and hence, even in the public interest, the Court should direct the respondents to adopt the route as recommended or suggested by the petitioners in this petition.
Mr. Dipak R. Dave, learned advocate appearing for the respondents on Caveat, on the other hand, has submitted that the Scheme has already been sanctioned by the State Government and the Notification was also issued on 31.12.2009 to this effect. In the public notice, it was specifically stated that erection of the proposed 66 KV D/C tower from Adodar Wind farm to existing 66 KV Chhaya town S/S and to establish Adodar Wind farm. The area covered is about 15 Kms. and the villages which are covered are Limbadi, Gosabara, Odadara, Ratapar, Porbandar and the estimated capital cost is about Rs.475 Lacs. He has further submitted that as on today, out of 58 location of foundation, 53 foundations are already completed. Out of 58 towers, 22 towers are erected and stringing work is completed about 4 Kms. as against the total work of about 13.66 Kms. He has, therefore, submitted that work to the tune of approximately 50% to 60% is already complete. He has, therefore, submitted that in the interest of public also, it is not advisable to change the route as proposed by the petitioners.
Mr. Dave relied on the decision of this Court in the case of Jiviben Motibhai Patel V/s. Executive Engineer (C & M), Gujarat Electricity Board, Baroda and another, 37 (1) GLR 470 wherein it is held that looking to the provisions of Section 42, the entire mechanism and the Scheme of Section 42 is that where the sanctioned scheme gives powers, the Board or generating Company shall exercise such powers. When the sanctioned Scheme does not confer such power, the Board or the generating company has no option but to take recourse to the provisions of Sec. 12 to 19 of the Electricity Act. No doubt, in each case, however the Board shall be bound by the express provisions of Sec.17 of the Electricity Act. In view of Section 42 read with Part III of the Indian Telegraph Act, the generating company has also such powers to fix poles, wires, etc., in the agricultural land of a private person and that person cannot object either on the principles of natural justice or on the ground of unauthorized user. All he is entitled to is compensation provided for under the proviso (d) to Sec. 10 of the Telegraph Act. It is further observed that Section 51 makes a clear provision empowering the State Government by an order in writing to confer such powers of fixing of electric supply line, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for proper coordination of works, upon a public office, Board or licensee or any other person engaged in the business of supplying energy to the public under Sec.28 of the Electricity Act, as are vested in the Telegraph authority under the Indian Telegraph Act. Therefore, there is no doubt in holding that the provisions of Section 51 override provisions of Sections 12 to 16 and 18 & 19 of the Electricity Act. Those powers given to the State Government under Section 51 are undoubtedly wide and capable of affecting powers sometimes prejudicially. The Court, therefore, held that the State Government is empowered to give powers to the Board or licensee for placing of electric supply lines, wires and apparatus for transmission and distribution of energy.
Mr. Dave further relied on the decision of this Court in the case of Jayantikumar Bhagubhai Patel and another V/s. State of Gujarat and another, AIR 2007 GUJARAT 32 wherein after referring to various decisions cited before the Court, it was held that the petitioners have filed the said petition with an oblique motive and for extraneous considerations. The Court further held that there is no substance in any of the petitions and the same are accordingly dismissed.
Based on the aforesaid factual background and the decisions of this Court, Mr. Dave has strongly urged that there is no substance or merit in the petition and the petition be summarily dismissed.
Having heard learned advocates appearing for the respective parties and having considered the factual background of the entire case, more particularly, in light of the sanctioned Scheme, the Court is of the view that no interference is called for in the action that has been undertaken by the respondents. As is indicated earlier, the Scheme is duly sanctioned and substantial work has been carried out. Necessary procedure has been followed by the respondents and the State Government has acted on the basis of an expert opinion. The allegations made by the petitioners in this petition against the Contractor will not have any bearing especially when the Scheme is duly sanctioned by the State Government. In the public notice itself, it was made clear that in pursuance of Section 29, sub-section (1) and Section 42 of the Electricity Act, 1948, a notification was issued to the effect that GETCO proposed to undertake various Schemes and shall exercise for the placing of any wires, poles, wall brackets, Stays, apparatus and appliances for transmission and distribution of electricity or for transmission of telegraphic or telephonic communication necessary for proper coordination of the works of GETCO, in the area indicated in the said public notice, all power which Telegraph Authority possesses, the GETCO shall not be bound by the provisions of Section 12 to 16, 18 and 19 of the Indian Electricity Act, 1910 for the purpose of this Scheme.
In view of specific powers conferred on the respondents, the work undertaken by them is in conformity with the said authority and it cannot be said that they have undertaken the said work without taking into consideration all the pros and cons of the issues.
In the above view of the matter, the Court does not find any substance or merit in the petition. Hence, the petition is summarily dismissed.
Sd/-
[K. A. PUJ, J.] Savariya Top