Ishwar Singh And Another vs State Of U.P. And 8 Others
2021 Latest Caselaw 11080 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. -40																			AFR
 
Case :- WRIT - C No. - 20607 of 2021
 

 
Petitioner :- Ishwar Singh And Another
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Abhitab Kumar Tiwari
 
Counsel for Respondent :- C.S.C., Kartikeya Saran
 

 
Hon'ble Manoj Misra,J.

Hon'ble Jayant Banerji,J.

1. Heard learned counsel for the petitioners; learned Standing Counsel for the respondents 1, 2 and 3; Sri Kartikeya Saran for the respondents 4 and 5; and perused the record.

2. The petitioner seeks quashing of the order, dated 17.03.2021, passed by U.P. Electricity Regulatory Commission, Lucknow (for short the 'Commission') in Petition No.1530 of 2019. The petitioners also seek quashing of the orders dated 26.08.2019 and 05.01.2018 passed by the District Magistrate, Meerut in Misc. Case No.14 of 2018 and Misc. Case No.7 of 2016, respectively. In addition to above, the petitioners pray for a direction upon the respondents to lay electricity transmission lines according to the sanctioned map approved by the District Magistrate, Meerut (hereinafter referred to as the D.M.) vide order dated 23.08.2016 passed in Misc. Case No.2 of 2016.

3. To have a clear understanding of the controversy at hand, a glimpse at the facts would be apposite. Paschimanchal Vidyut Vitran Nigam Limited-4th respondent (for short the Nigam) proposed to lay an electricity transmission line in village Karnawal, District Meerut. The route for the line was to pass from near a structure (room) that housed a tube-well of the petitioners. Aggrieved with proposed line's close proximity with that structure, an application was submitted by the petitioners before the D. M. with copy to the Managing Director (for short M.D.) of the Nigam. The M. D. of the Nigam, on 29.05.2015, passed an order rejecting the application of the petitioners after noticing and observing that the proposed line was not passing from over the room or structure housing the tube-well of the petitioners and that the poles of the proposed line were placed on chak-road (i.e. village path-way), though near petitioners' place but at a distance which would obviate any threat or danger of an accident. Aggrieved with rejection of their application, the petitioners filed Writ-C No.10033 of 2016, which was disposed off, vide order dated 31.03.2016, by giving liberty to the petitioners to apply to the D. M. in terms of the second proviso to Rule 3(b) of the Works of Licensees Rules, 2006 (for short 'Licensees Rules, 2006') framed under the Electricity Act, 2003 (for short 'Act, 2003'). Pursuant to that liberty, the petitioners filed a representation before the D.M. The D.M., after calling for reports, vide order dated 23.08.2016, directed shifting of the proposed transmission line,. That shift made the transmission line to pass through the fields of few tenure holders. Consequently, Jaipal Singh and another (the predecessor-in-interest of the respondents 6/1 to 6/3) filed Writ-C No.48248 of 2016, which was disposed off, vide order dated 04.10.2016, by giving liberty to those petitioners to represent their cause to the D.M. under the Licensees Rules, 2006. As a result, the predecessor-in-interest of the respondents 6/1 to 6/3 submitted a representation before the D.M. The D.M. again examined the matter and, after considering spot inspection report, upon finding that the initially proposed route of the transmission line, prior to its alteration by order dated 23.08.2016, was to be mounted on poles installed on the chak-road adjoining plot Nos.1239, 1260, 1261, 1262, 1265, 1266 and 1267 and was not passing over anybody's field, by his order dated 05.01.2018 affirmed the original proposed route of the transmission line.

4. Being aggrieved with the restoration of the original route, the petitioners filed Writ-C No.11086 of 2018 to question the order dated 05.01.2018 on the ground that the D. M. held no jurisdiction to revisit the order dated 23.08.2016 which was passed after hearing both sides, particularly, when it was not challenged in Writ-C No.48248 of 2016; and that the writ court's direction issued in Writ-C No.48248 of 2016 was obtained by concealing the order dated 23.08.2016. After noticing the aforesaid plea taken by the petitioners, Writ-C No.11086 of 2018 was disposed off, vide order dated 30.03.2018, by giving liberty to the petitioners to seek for recall of the order dated 05.01.2018 passed by the D.M. Pursuant to that liberty, the petitioners filed recall application before the D.M. This recall application was rejected by impugned order dated 26.08.2019.

5. A perusal of the order dated 26.08.2019 would reveal that it was passed after considering a report dated 14.06.2019 submitted by a team comprising Executive Engineer, Vidyut Vitran Khand-3, Meerut; Superintending Engineer (Gramin), Vidyut Vitran; and Additional District Magistrate (Finance and Revenue), Meerut. The said team conducted spot inspection and prepared alignment map, as per which, seven pillars were found standing on spot. It also found that there was no drain (Naali) on spot and all the pillars were erected on chak-road thereby obviating violation of property rights of any tenure holder. The report also indicated that the poles that were put were at a safe distance from the rooms established by the petitioners on plot nos.1260 and 1261 to house the tube-well. In the light of this report and after dealing with all the arguments and material brought on record, the recall application was rejected by a well considered order.

6. Aggrieved with the order dated 26.08.2019, the petitioners filed Writ-C No.32783 of 2019, which was disposed off, vide order dated 15.10.2019, by giving liberty liberty to the petitioners to avail alternative remedy of revision available under sub-rule (3) of Rule 3 of the Licensees Rules, 2006. Pursuant to that liberty, the petitioners moved an application before the Commission, which was registered as Petition No.1530 of 2019. The Commission dismissed the revision vide impugned order dated 17.03.2021.

7. Assailing the impugned orders, the learned counsel for the petitioners has submitted as follows:- (a) the D. M. had no jurisdiction to pass a fresh order of the nature passed by him on 05.01.2018 as he had already taken a decision on 23.08.2016 and, as there existed no power of review, the recall application of the petitioners ought to have been allowed; (b) the Commission did not afford opportunity of personal hearing to the counsel for the petitioners therefore, the order passed by the Commission is vitiated; and (c) the Commission has failed to exercise its jurisdiction by limiting the scope of revision to examine only jurisdictional errors, at par with those revisional courts that exercise powers under the Code of Criminal Procedure and Civil Procedure Code when, otherwise, there existed no such limitation on Commission's powers under the Licensees Rules, 2006. The learned counsel for the petitioners thus contended that the order passed by the Commission deserves to be set aside and the matter be remanded back to the Commission for fresh adjudication.

8. Per contra, learned counsel for the respondents submitted that D.M.'s order dated 23.08.2016 altering the proposed route of the line did not address the grievance of Jaipal Singh (the predecessor-in-interest of the respondents 6/1 to 6/3). Under the circumstances, as the altered route affected the right of predecessor-in-interest of the respondents 6/1 to 6/3, he had a right to approach the D.M. Thus, the order passed by the D. M. dated 05.01.2018 cannot be said to be without jurisdiction. Moreover, now, the recall application of the petitioners has been rejected by a speaking order, after considering the case of both sides and taking into consideration the spot inspection report which clearly indicated that the proposed transmission line is not to pass over land of any tenure holder but is to be mounted on towers erected on chak-road. With regard to the submission that the petitioners were not given opportunity of hearing by the Commission, it was submitted that due opportunity of hearing was given by the Commission. The order of the Commission reflects that 27.10.2020 was the date fixed for hearing but the counsel for the petitioners did not appear. Further, paragraph 8 of the impugned order passed by the Commission reflects that the Commission has examined submissions made by all the parties. With regard to the contention that the Commission did not properly examine the matter under the pretext that its revisional jurisdiction is limited, it was submitted that the Commission examined the legality of the order impugned before it and its approach did not suffer from any legal infirmity.

9. Having noticed the rival submissions, before we proceed to assess the weight of the respective submissions, it would be useful to have a glance at the relevant provisions. The Licensees Rules, 2006 have been framed in exercise of the powers conferred upon the Central Government under Clause (e) of sub-section (2) of Section 176 read with sub-section (2) of Section 67 of the Act, 2003. Sub-section (2) of Section 67 empowers Appropriate Government to frame rules in respect of carrying out works by the licensee. Rule 3 of the Licensees Rules, 2006 confers certain powers on the licensee and also provides for a mechanism to keep a check and control on exercise of those powers. Rule 3 is extracted below:-

"3. Licensee to carry out works.--

(1) A licensee may--

(a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land;

(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:

Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works:

Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered.

(2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.

(3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.

(4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act."

Sub-section (3) of Section 67 of the Act, 2003, provides the guiding principle for exercise of those powers in following terms:-

"A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him."

Likewise, Rule 10 of the Licensees Rules, 2006 further guides exercise of that power by providing as follows:-

"Avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works.--The licensee shall, while carrying out works, ensure that such works do not cause public nuisance, environmental damage and unnecessary damage to the public or private property."

10. A combined reading of the extracted provisions would reveal that though a licensee is empowered to carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, where over or where under any electricity supply-line or works has not already been lawfully laid down or placed by such licensees, with the prior consent of the owner or occupier of any building or land but, in a case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, a permission in writing is to be obtained by the licensee from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works. In a case where the works have been carried out and the owner or occupier of any building or land on which any works have been carried out shows sufficient cause, the District Magistrate or the Commissioner of Police or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered. Sub-rule (3) of Rule 3 of the Licensees Rules, 2006 provides that every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission. Thus, in a nutshell, Rule 3 contemplates two situations: (a) before the work is carried out; and (b) after the work is carried out. If before the work is carried out, the owner or occupier of the building or land affected raises objections in respect of works to be carried out, a permission, in writing, from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in that behalf, for carrying out the works, is to be obtained by the licensee. Where the works have already been carried out and the owner or occupier of any building or land on which any works have been carried out shows sufficient cause, the District Magistrate or the Commissioner of Police or the officer authorised is empowered to direct by an order in writing for any such works to be removed or altered. When Rule 3 of the Licensees Rules, 2006 is read with sub-section (3) of Section 67 of the Act, 2003 and Rule 10 of the Licensee Rules, 2006, it would suggest that though the licensee is empowered to carry out the works contemplated under the Act, 2003 as also the Licensees Rules, 2006 framed thereunder but, for carrying out such works, it must keep in mind that minimal damage or inconvenience is caused to the public or private person and their property. What is important to note is that the Act, 2003 as well as Licensees Rules, 2006 both mandate that the licensee while carrying out the works must avoid unnecessary damage to the public or private property. However, if damage is caused or the work carried out is to the detriment or inconvenience of any party, the licensee would have to fully compensate the person concerned for any damage, detriment or inconvenience caused by him or any one employed by him.

11. Seen in the light of the legal position noticed above, in the instant case, the work proposed by the licensee was to be carried out by erecting poles on the chak-road adjoining the fields of various tenure holders and the transmission line was to be mounted on those poles that were to be placed on chak-road. Meaning thereby that the Licensee took pains to avoid damage to any private property. The petitioners, however, raised objection because one of the electricity poles was in close proximity to the room housing the tube-well of the petitioners. This objection was rejected by the M.D. of the Nigam. But, as this issue ought to have been decided by the D.M., on a challenge laid by the petitioners to the order of the M.D., the writ court gave liberty to the petitioners to file objections before the D.M. under the second proviso to Rule 3(b) of the Licensees Rules, 2006. Pursuant thereto, the District Magistrate on objection of the petitioners altered the course of the proposed line so as to shift it from the chak-road into the fields of few tenure holders. Aggrieved therewith, some of the tenure holders filed a separate writ petition before this Court, which was disposed off by giving them liberty to file their objection before the D.M. Whereafter, the D.M. passed the order dated 05.01.2018 restoring the same position that was obtaining from before.

12. The contention of the learned counsel for the petitioners that once the D.M. had passed his order on the objection of the petitioners, the order could not have been reviewed/altered is misconceived for the simple reason that Rule 3 of the Licensee Rules, 2006 envisage consideration of objections at two stages one before the work is carried out and the other after the work is carried out. When the objection of the petitioners was first decided by the M.D., the other tenure holders were not affected. But, when the proposed work was altered by the decision of the D.M., they became affected and, therefore, they had a right to raise an objection before the D. M., which the D.M. was required to consider. In view of the above, the claim of the petitioners that the D.M. held no jurisdiction to pass a fresh order, as it amounted to review of his earlier order, is misconceived and is not in consonance with the provisions of Rules. More so, when it does not appear from the earlier order of the D.M. that he had considered the grievances of those tenure holders who were to get affected by the alteration in the route. Further, the contention of the learned counsel for the petitioners that the petitioners would suffer on account of close proximity of the proposed transmission line to the room housing the tube-well of the petitioners is not acceptable because the licensee, while carrying out the works, is expected to ensure that a safe distance is maintained from the private property. Furthermore, it is not in dispute that the proposed line is to be mounted on poles planted on chak-road and not over private land. It has also come on record that the towers to be erected are of sufficient height enabling maintenance of minimum safe distance from any structure nearby. Thus, the over all balance of convenience lies in placement of the towers on chak-road than over private land. If, thereafter, the petitioners suffer any loss or damage, they can always seek for compensation. We, therefore, find no merit in the submission of the learned counsel for the petitioner that the order of the D.M. was without jurisdiction and that it was prejudicial to the interest of the petitioners.

13. With respect to the second submission of the learned counsel for the petitioners that the Commission did not accord proper hearing to the petitioners as would be clear from paragraph 7 of the order of the Commission, suffice it to say that paragraph 7 of the order of the Commission records that the counsel for the petitioners had filed an application dated 03.11.2020 stating therein that, by mistake, she had noted the date of hearing on the revision as 28.10.2020 in place of 27.10.2020 and so she could not attend the proceedings of the revision on 27.10.2020. The paragraph proceeds to record that the case proceeded ex-parte on 27.10.2020 and the judgment was reserved and therefore the counsel for the revisionist could not be heard personally though, later, on 04.11.2020, written submissions were filed by the revisionist. The order though notices that written arguments were furnished after the judgment was reserved but states, in paragraph 7, that written submissions were not considered. But, immediately thereafter, in paragraph 8, it is stated as follows:- "The Commission has examined the submission made by all the parties and perused the records. The first and foremost argument taken by the learned counsel for the revisionist that the respondent no.2 the District Magistrate was not empowered to change, alter or modify the line route/order......." This observation clearly demonstrates that the Commission did apply its mind to the submissions made and grounds taken by the revisionist and thereafter it proceeded to dismiss the revision as being devoid of merit. No doubt, the observation made in paragraph 7 of the order passed by the Commission may suggest that the petitioner was not heard and that his arguments were not considered but from the following paragraphs it appears that the arguments were noticed and considered. Therefore, on this technical fault in the order, the whole order would not become vulnerable. In view of the above, the second submission of the learned counsel for the petitioners also deserves rejection and is, accordingly, rejected.

14. Coming to the third contention of the learned counsel for the petitioners that the Commission failed to examine the factual aspects of the case by placing on itself unwarranted restriction on the scope of its revisional power, it be observed that, no doubt, the revisional powers of the Commission are not limited by the provisions of the Code of Civil Procedure but the term revision by itself limits the scope of consideration and it cannot be equated to appellate power. In the case of Chandrika Prasad (dead) through LRS and others Vs. Umesh Kumar Verma and others: (2002) 1 SCC 531, while dealing with the revisional power under the proviso to Section 14 (8) of the Bihar Rent Act, the Apex Court, in paragraph 7, made certain general observations regarding the scope of revisional jurisdiction. They are extracted below:-

"...........The scope of the revisional jurisdiction depends on the language of the statute. Though, revisional jurisdiction is only a part of the appellate jurisdiction, it cannot be equated with that of full-fledged appeal."

15. In P. Ramanatha Aiyar's Advance Law Lexicon, Fourth Edition, it has been provided that there is a distinction between an appeal and a revision. Whereas an appeal confers statutory vested right on the litigant which accrues the moment the proceedings in question are instituted, the right of revision is merely a discretionary power to be exercised by the revisional court according to the circumstances of the case or exigencies of the situation. A person cannot as a matter of right claim the proceedings to be revised.

16. Having noticed the import of the term "revision", we may now proceed to examine the provisions of the Licensees Rules, 2006 that enables a revision by the Appropriate Commission. Sub-rule (3) of Rule 3 of the Licensees Rules, 2006 is the enabling provision which provides that every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission. Rule 15 of the Licensees Rules, 2006 provides that when a matter is brought to the Appropriate Commission for determination under these Rules, the matter shall be determined by the Appropriate Commission within a period of 30 days after hearing the parties concerned. The Rules, 2006 do not specifically provide that the person aggrieved shall have a right to file a revision before the Commission. What is provided is that the order passed by the District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission. Rule 15 provides the mode and manner in which the revision is to be decided once the matter is brought before the Appropriate Commission. Though the scope of revision is not defined by the provisions of the Licensees Rules, 2006 or the Act, 2003 but there is nothing shown to us which may suggest that the scope of revision is equivalent to that of an appeal. Having said that, we may observe that though the revisional powers cannot be equated to that of an appellate authority in a full-fledged appeal but, the revisional powers of the Commission can be utilised to scrutinise whether the subordinate authority has: (a) acted within its jurisdiction and in consonance with the provisions of the statute and the rules framed thereunder; (b) conducted its proceeding in accordance with the procedure prescribed and the principles of natural justice; and (c) rendered a perverse finding. Where, upon such scrutiny, it is found that the subordinate authority has not acted within its jurisdiction or in consonance with the provisions of the statute and the rules framed thereunder or has acted in flagrant violation of the procedure prescribed or the principles of natural justice or has rendered finding(s) that is/are perverse, the Commission, in exercise of its revisional power, may interfere and pass appropriate orders.

17. In the instant case, we find from the record and from the orders passed by the District Magistrate that an effort was there on the part of the licensee to cause minimum damage to private property and for that end the electricity poles were placed on chak-road by maintaining a safe distance from the adjoining property, which is in consonance with the provisions of sub-section (3) of section 67 of the Act, 2003 and Rule 10 of the Licensees Rules, 2006 and the route was finalized after according consideration to the grievances of all the persons likely to be affected. Accordingly, as we find that the licensee has taken pains to install towers over chak-road and not over the fields/property of the petitioners, such an exercise of the licensee cannot be questioned by the petitioners. If the petitioners still have any grievance, they may raise a claim for compensation.

18. Before parting, we may observe that in the instant case the proposal for transmission of electricity was mooted in the year 2015. Now, we are in the year 2021 and the matter is still under litigation. Electricity is a basic human need and its supply wherever possible and permissible should not be delayed. Therefore, whenever a dispute arises in respect of the route of an electricity line the same should be addressed with utmost expedition so that the supply of electricity is not indefinitely stalled. Thus, where objections are considered and rejected, unless there is perversity in its consideration and rejection, ordinarily, such a decision should not be interfered with, particularly, where the affected party has been heard before the decision. More so, because the person affected can be monetarily compensated.

19. Accordingly, for all the reasons recorded above, we do not find any merit in this petition and the same is dismissed.

Order Date :- 13.9.2021

AKShukla/-