Bombay High Court
Manish Sureshkumar Jaiswal And ... vs Sub-Divisional Officer, ... on 13 April, 2022
Bench: A.S. Chandurkar, Mukulika Shrikant Jawalkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5459/2021
(MANISH SURESHKUMAR JAISWAL & ANOTHER VERSUS SUB-DIVISIONAL OFFICER,
RALEGAON, DISTRICT YAVATMAL & OTHERS)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Dr. Anjan De with Shri Apurv De, counsel for the petitioners.
Shri Neeraj R. Patil, Assistant Government Pleader for the R-1, 3 and 4.
Shri Subodh P. Dharmadhikari, Senior Advocate with Shri D.M. Kale, counsel
for the R-2.
CORAM : A. S. CHANDURKAR AND SMT. M.S. JAWALKAR, JJ.
DATE : APRIL 13, 2022.
Heard.
2. The challenge raised in this writ petition is to the action of the
respondents in seeking to lay high tension line on the land of the
petitioners by erection of towers for that purpose. Being aggrieved by the
steps taken in that regard pursuant to the order dated 13.09.2021
provisionally determining the market value of Survey No.489 which
belongs to the petitioners by treating it as an agricultural land as well as
the subsequent communication dated 16.11.2021 modifying the market
value as determined earlier, these communications/orders are also under
challenge.
3. It is the case of the petitioners that they are the owners of Survey
no.489 which was purchased by them as an agricultural land. The same
admeasures 2 Hectare 91 R. The said land was converted for non-
agricultural residential purpose on 02.08.2013. With the approval of the
layout plan about 95 plots in the area admeasuring 17800 square meters
came to be approved. The necessary entry as regards conversion of the
land was also taken in the 7/12 extract. The petitioners received a notice
dated 25.03.2021 from the Naib Tahsildar in which it was stated that the
Power Grid Corporation of India Limited had proposed to lay a high tension
line across the land owned by the petitioners. Since some obstruction was
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being caused by the petitioners they were required to attend the hearing
before the Tahsildar on 06.04.2021. A similar notice to that effect was
again issued on 23.04.2021. Thereafter the Authorities inspected the land
in question and proceeded to determine the market value of that land by
treating it to be an agricultural land. The Sub-Divisional Officer on
13.09.2021 determined the market value of that land to be Rs.33,07,513/-.
By another order dated 16.11.2021 the aforesaid market value was
modified by reducing the same. Being aggrieved by the action of the
respondents and especially the Power Grid Corporation of India Limited of
seeking to lay high tension line across the field of the petitioners as well as
the determination of market value of that land by the Sub-Divisional
Officer, the present writ petition has been filed.
4. Dr. Anjan De, learned counsel for the petitioners submitted that the
entire exercise undertaken by the respondents while seeking to lay high
tension line and erection of towers for that purpose was contrary to the
provisions of Section 16 of the Indian Telegraph Act, 1885 (for short, 'the
said Act'). Referring to the notices dated 25.03.2021 and 22.04.2021
issued by the Naib Tahsildar, it was submitted that the same were not in
accordance with the provisions of Section 16(1) of the said Act. These
notices were with regard to the alleged obstruction said to be caused by the
petitioners and not with regard to the purpose for which such notice under
Section 16(1) of the said Act was required to be issued. There was no
hearing granted to the petitioners in the context of Section 16(1) of the
said Act. Inviting attention to the judgment of the Division Bench in Vivek
Brajendra Singh Versus State of Maharashtra & Others [2012(3) All MR
130], it was submitted that the District Magistrate was required to apply
his mind to the relevant aspects after the grant of hearing. The learned
counsel pointed out that Survey No.489 had been converted for non-
agricultural use on 02.08.2013 itself but while determining the market
value of that land on 13.09.2021 and 16.11.2021, the Sub-Divisional
Officer proceeded on the premise that the land was an agricultural land. It
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was submitted that about 95 plots had been duly sanctioned in the layout
and as a result of the high tension line passing through the land a
substantial area would be considered as 'no construction zone'. To indicate
non-consideration of relevant aspects, attention was invited to the
communication dated 02.08.2021 issued by the Sub-Registrar, Registration
and Stamps Department by which valuation of the said land had been
indicated which was much more than that was mentioned in the
communications dated 13.09.2021 and 16.11.2021. It was further
submitted that on 29.10.2021, the Deputy Collector had returned the
proposal that was submitted by the Sub-Divisional Officer in the matter of
determination of the market value. Thus, without due application of mind
the market value determined earlier was modified on 16.11.2021. It was
urged that the Committee that was constituted and which passed revised
order dated 16.11.2021 was not properly constituted nor were the
petitioners given any hearing in that regard. Inviting attention to various
valuation reports obtained by the petitioners it was submitted that if a
proper notice in that regard would have been given to the petitioners all
such material available with them could have been placed before the
respondents. In support of his submissions, the learned counsel by placing
reliance on the judgment in the case of Mohinder Singh Gill Versus Chief
Election Commissioner, New Delhi [(1978) 1 SCC 405] submitted that the
validity of the impugned action ought to be determined from the contents
of the orders impugned and not on the basis of additional material sought
to be produced on record. Reference was also made to the decisions in
East Coast Railway & Another Versus Mahadev Appa Rao & Others
[(2010) 7 SCC 678] and Hindustan Petroleum Corporation Ltd. Versus
Darius Shapur Chenai [(2005) 7 SCC 627]. It was also submitted that the
onus of proof was on the Power Grid Corporation of India Limited that it
had taken all the steps to ensure that no damage was caused to the land or
environment while erecting the high tension line. It was thus submitted
that the prayers made in the writ petition ought to be granted in view of
the aforesaid.
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5. Shri Subodh Dharmadhikari, learned Senior Advocate for the
respondent no.2-Power Grid Corporation of India Limited opposed
aforesaid submissions. Inviting attention at the outset to the prayers made
in the writ petition, it was submitted that the grievance of the petitioners as
regards the incorrect manner of determining the market value could be
questioned in proceedings under Section 16(3) of the said Act. The
impugned orders dated 13.09.2021 and 16.11.2021 merely sought to
determine the market value of the land through which the high tension line
was to pass and the towers were to be erected. There was a distinction
between the provisions of Sections 10 and 16 of the said Act. Under
Section 10 of the said Act, the Telegraph Authority was empowered to
place and maintain a telegraph line upon any immovable property. The
Telegraph Authority was required to ensure that minimum damage as
possible would be caused while undertaking such exercise and at the same
time that Authority was required to compensate all persons interested for
any damage sustained in that process. Under Section 16(1) of the said Act,
the District Magistrate was empowered to permit the Telegraph Authority
to exercise powers under Section 10(d) of the said Act. It is only when
there was a dispute as regards sufficiency of the compensation to be paid
under Section 10(d) of the said Act that the dispute would be determined
by the District Judge by having a resort to the provisions of Section 16(4)
of the said Act. It was submitted that the notice issued to the petitioners
was only for not obstructing the exercise undertaken under Section 10(d)
of the said Act and not with regard to determination of the market value of
that land. The learned Senior Advocate invited attention to the decisions
in Power Grid Corporation of India Limited Versus Century Textiles and
Industries Limited & Others [(2017) 5 SCC 143] and Jarnail Singh Versus
Maharashtra State Electricity Transmission Co. Ltd., Nagpur [AIR 2015
Bombay 283] in that regard. It had been held that under Section 10 of the
said Act, there was no question of any notice or hearing that was required
to be given before exercising the power to establish or maintain a telegraph
line. Under Section 16 of the said Act what was required to be seen is
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whether the objection taken or suggestion given as regards laying or
maintaining a telegraph line was justified or not. If the petitioners were
not satisfied with the quantum of compensation they were free to invoke
the remedy provided under Section 16(3) of the said Act. Attention was
then invited to the reasons for laying down the high tension line across
various fields including the land of the petitioners. In that context a
communication dated 30.05.2018 as well as an agreement between the
Central Railway Nagpur and Power Grid Corporation of India Limited
dated 27.05.2018 was referred to. It was thus submitted that since the
notices dated 25.03.2021 and 22.04.2021 were only with regard to
removal of obstruction and not with regard to the location of the towers or
determination of the market value, no fault could be found in the same. As
regards the allegation that there was absence of delegation by the District
Magistrate in favour of the Naib Tahsildar for issuing those notices it was
submitted that there was no pleading on record in that context. Similarly,
there was no material placed on record to show that environmental
clearance was required by the Power Grid Corporation of India Limited. It
was thus submitted that there was no merit in the challenge as raised and
hence the writ petition was liable to be dismissed.
6. Shri Neeraj Patil, learned Assistant Government Pleader for the
respondent nos.1, 3 and 4 opposed the submissions made on behalf of the
petitioners. In addition to what was urged on behalf of the Power Grid
Corporation of India Limited, it was submitted that the entire action as
taken was in accordance with the provisions of the said Act and the fact
that the land was converted into layouts was also kept in mind. This was
evident from the order dated 16.11.2021 wherein reference to this effect
was made.
7. We have heard the learned counsel for the parties at length and we
have perused the documents placed on record. We have given due
consideration to their respective submissions. Before considering the
submissions as urged by the petitioners, it would be necessary to keep in
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mind the distinction between the provisions of Section 10 and Section 16
of the said Act. The validity of Section 10 of the said Act was challenged in
Vivek Brajendra Singh (supra) on the ground that the same did not provide
for any hearing to the land owner of any immovable property over or along
which an electric line is to be placed. Considering the challenge, it was held
that the provisions of Section 10 did not contemplate grant of any hearing
prior to undertaking the exercise of laying down the electricity line. This
position has been reiterated by the Division Bench in its subsequent
decision in Jarnail Singh (supra). The right of hearing was only restricted
in the context of any obstruction being caused by a land holder since the
State acquires a right of user in the land of a citizen which involves
incurring of civil consequences. It was held that the power of the District
Magistrate under Section 16 or 17 of the said Act was only an extension of
power of the Telegraph Authority under Section 10 of the said Act.
8. It is thus clear that prior to determining the area through which the
high tension line would pass or a tower would be erected there is no right
of hearing conferred on a land owner. The provisions of Section 10 of the
said Act do not provide for the same. The right of hearing has been read
into Section 16(1) of the said Act in the matter of resistance or obstruction
by a land owner when power under Section 10(d) is carried out. In the
aforesaid context when the notices dated 25.03.2021 and 22.04.2021 are
perused, it becomes clear that the same are only in the context of
obstruction being caused by the petitioners in the matter of laying down
the high tension line and erecting the towers. Since there are no averments
in the writ petition on the aspect of delegation of power by the District
Magistrate in favour of the Naib Tahsildar, it is not necessary to examine
that contention.
9. The principal grievance of the petitioners appears to be the
consideration of their land to be agricultural while proceeding to determine
the market value. The learned counsel for the petitioners was at pains to
indicate that the land had been converted for non-agricultural use on
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02.08.2013 and despite that it was being referred to as an agricultural
land. About 95 plots had been sanctioned there. It is on that premise that
it was urged that there had to be application of mind by the District
Magistrate in that regard. It is however found that these aspects relate to
sufficiency of compensation and therefore if any dispute in that regard
arises, the same can be resolved by having resort to Section 16(3) of the
said Act. That stage however is yet to arrive since it would be for the
petitioners to raise such dispute in accordance with those provisions. There
is no scope to examine in this context the grievance of the petitioners
regarding passing of the high tension line and erection of the towers in
their land. That matter is covered by Section 10 of the said Act. We
therefore do not find any reason to interfere with such exercise.
10. The ratio of the decisions relied upon by the learned counsel for the
petitioners cannot be disputed. The said ratio however cannot be made
applicable to the case in hand. It is also to be borne in mind that the
private interest of the petitioners would have to give way to larger public
interest since the work of laying the high tension line and erection of
towers was required to be undertaken due to shifting of the proposed
Wardha - Yavatmal - Nanded railway line. The right of the petitioners to
be suitably compensated has not been taken away.
11. For all these reasons, we do not find any merit in the writ petition
which is accordingly dismissed with no order as to costs.
At this stage the learned counsel for the petitioners seeks
continuation of the interim relief that was granted on 22.12.2021. This
prayer is opposed by the learned counsel for the respondent no.2.
Considering the larger public interest involved, the prayer as made is
rejected.
(SMT. M.S. JAWALKAR, J.) (A. S. CHANDURKAR, J.)
APTE
Signed By: Digitally signed
byROHIT DATTATRAYA
APTE
Signing Date:13.04.2022 17:17
