Bombay High Court
Maharashtra Eastern Grid Power ... vs Collector Of Buldhana (Revenue) And ... on 7 December, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:17093
1-WP469.19-J.odt
1/16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 469 OF 2019
PETITIONER : Maharashtra Eastern Grid Power
(Ori. Non-applicant) Transmission Company Ltd., Ward
No.61, House No.34, Plot No.8, Redhi
Sindhi Nagar, Akola, through its
authorized signatory Shri Amarnath
Thiyagarajan, aged about 45 years,
Occ.: Service, R/o. Presently at
Nagpur.
-VERSUS-
RESPONDENTS : 1. Collector of Buldhana (Revenue),
Collectorate Office, Civil Lines, Buldana,
Dist.Buldana.
2. Sub-Divisional Officer, Sindhkhedraja,
Sub-Divisional Office Sindkhedraja,
Dist. Buldana.
3. Tahasildar, Deulgaoraja, Tahsildar
Karyalaya, Tal. Deulgaoraja,
Dist.Buldana.
4. Dilip Bikaji Dhete, R/oDeulgao Mahi,
Deulgaoraja. Near Water Tank,
Buldana, Dist.Buldana.
5. Maharashtra Electricity Regulatory
Commission, Through its Secretary, 13th
Floor, Center No.1, World Trade Center,
Cuffe Parade, Culaba Mumbai-05.
KHUNTE
1-WP469.19-J.odt
2/16
-----------------------------------------------------------------------------------
Mr.D.V.Chauhan, counsel for the petitioner.
Mr.B. M. Lonare, AGP for the respondents-State.
Mr.J.H.Kothari, counsel for the respondent No.4.
None for the respondent No.5.
-----------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE, J.
DATE : 7TH DECEMBER, 2023
ORAL JUDGMENT
Rule. Rule made returnable forthwith.
2. Heard Mr.Chauhan, learned counsel for the petitioner, learned
AGP for the respondent Nos.1 to 3 and Mr. Kothari, learned counsel
for the respondent No.4 finally. None appears for the respondent
No.5-MERC though served as per the endorsement in the farad-sheet
dated 06/12/2023.
3. On 06/12/2023, the following position was recorded.
3.1 The petition questions order dated 05/09/2018 (pg.153)
passed by the Sub-Divisional Officer, Sindkhedraja exercising powers
under the GR dated 27/01/2017 (pg.193) whereby compensation for
the use of the land of the respondent No.4 for the purpose of laying
the electricity transmission line has been determined.
KHUNTE
1-WP469.19-J.odt
3.2. Mr.Chauhan, learned counsel for the petitioner, submits that
the learned SDO did not have the jurisdiction to do so for the reason
that the petitioner has been constituted as a Telegraph Authority as
defined in section 2(6) of the Indian Telegraph Act, 1885 (hereinafter
referred to as "Telegraph Act") and therefore was alone empowered
and authorized to determine the compensation for laying down the
line in exercise of the power under section 10(d) of the Telegraph Act
challenge to which could only be laid before the District Judge under
section 16(3) of the Telegraph Act. He further contends that the public
notice dated 14/10/2010 indicates that the petitioner has been
appointed as a licensee under Licence No.1/2010 by the Maharashtra
State Electricity Regulatory Commission (MERC) to establish and
operate the transmission lines, substations, bays and equipment and
related infrastructure for several transmission lines one of them being
Akola-II Aurangabad 765 in which the field of the respondent No.4
falls (pg.29). He further invites my attention to the order dated
13/06/2011 (pg.41) by which in exercise of the powers conferred
under section 164 of the Electricity Act 2003 and section 10 of the
Telegraph Act, 1885, the petitioner/licensee has been conferred the
powers of the Telegraph Authority as defined under the Telegraph Act
and therefore, would be the Authority to determine the compensation
for the laying of the electric line under section 10(d) of the Telegraph
KHUNTE
1-WP469.19-J.odt
Act. It is therefore, contended that since in exercise of the power
under section 164 of the Electricity Act, the petitioner/licensee has
been constituted as a Telegraph Authority, it is only the
petitioner/licensee who would have the power, as flowing from
section 10(d) of the Telegraph Act to determine the compensation and
no other authority for the transmission line indicated above on
account of which the impugned order passed by the SDO claiming to
have jurisdiction in light of the GR dated 01/11/2010, or for that
matter the GR dated 31/05/2017 (pg.193) would be without
jurisdiction. It is contended that all other general circulars issued by
the State cannot override the constitution of the petitioner/licensee as
an appropriate Authority for the particular section where the
transmission line has been directed to be erected. He further invites
my attention in this context to the Maharashtra Electricity Work of
Licensee Rules, 2012 (for short "MEWL Rules" hereinafter) in which
by virtue of Rule 3(4) thereof an exception has been made by
providing that nothing contained in this Rule, shall affect the powers
conferred upon the licensee under section.164 of the Electricity Act.
In that view of the matter, it is submitted that since the SDO,
Sindkhedraja was not conferred any jurisdiction or authority to act as
a Telegraph Authority for the above stated stretch of the transmission
line, any power which may have been conferred upon him by a
KHUNTE
1-WP469.19-J.odt
general circular, would not take away the authority of the petitioner/
licensee as available to it under section.10(d) of the Telegraph Act on
account of which the impugned order is without jurisdiction.
3.3. Mr.Kothari, learned counsel for the respondent No.4, while
supporting the impugned order, submits that the conferment of the
power upon the petitioner as a Telegraph Authority by the order dated
13/06/2011 is subject to exceptions as contained in the GR dated
01/11/2010 (pg.182) and therefore, the SDO, under the said GR in
conjunction with the powers conferred by the Maharashtra Electricity
Work of Licensee Rules, 2012 and the subsequent GR dated
31/05/2017 (pg.193) was empowered to determine the compensation
and therefore, the impugned order is liable to be sustained. He also
relies upon the judgment of this Court in Kishor Ravindra Zope v.
State of Maharashtra, reported in 2013 (1) Mh.L.J. 683.
3.4. Learned AGP supports the order.
4. Today, Mr. Chauhan, learned counsel for the petitioner,
invites my attention, to the definition of a 'distribution licensee' as
contained in section 2(17); a 'transmission line' as contained in
section 2 (72); and 'transmission licensee' as contained in section
2(73) of the Electricity Act, 2003. He also relies upon section 14 of
the Electricity Act, 2003 to contend that a licence is permissible to be
KHUNTE
1-WP469.19-J.odt
granted for the purpose of either transmission, distribution or trading
of electricity and in the instant case the licence for transmission was
granted to the petitioner. He further contends that section 67(1)(a) to
(f) contemplate the works which are permissible to be carried out for
which compensation under section 67(3) is permissible to be given by
the licensee and in case of any difference or dispute therein, the
appropriate Commission is granted to the authority to determine such
dispute under section 67(4). It is his contention that the provision of
section 67(3) and (4) of the Electricity Act would only be attracted in
respect of exercise of power under section 67(1)(a) to (f) and not
otherwise. According to him, in the instant case, the petitioner has
exercised the powers under section 10 of the Telegraph Act and
therefore, the question of applicability of section 67(3) and (4) of the
Electricity Act did not arise at all. Section 68(5) and (6) are also
pointed out for the same purpose. Relying upon the language of
section 69 of the Electricity Act, it is contended that section 69(1)(b)
requires a notice in writing to be given to the Telegraph Authority
which according to him would indicate that licensee exercising powers
under section 67 of the Electricity Act is a different and distinct entity
from a licensee exercising power as an appropriate authority under
section 10 of the Telegraph Act. Further inviting attention to section
86 of the Electricity Act, it is contended that none of the functions
KHUNTE
1-WP469.19-J.odt
permissible to be exercised under section 86(1)(a) to (j) thereof
indicate any right to the authority to determine compensation.
Section 86(1)(k) according to him, is a residual power and only
restricts and could only be related to right to determine compensation
under section 67(4) which situation would arise only if the power is
exercised by the licensee under section 67(1)(a) to (f) of the
Electricity Act. It is therefore, contended that since section 164 of the
Electricity Act specifically constitutes a licensee as an Appropriate
Authority to exercise powers, which the Telegraph Authority possesses
under the Telegraph Act, it would only be the District Judge under
section 16(3) of the Telegraph Act, who would have jurisdiction to
entertain a claim in case a dispute is raised on account of the efficacy
of the quantum of compensation and therefore, the SDO would not
have any jurisdiction at all to determine the compensation,
considering which the impugned order cannot be sustained and would
be required to be quashed and set aside. Reliance is placed by him
upon Prem pal v. State of U.P. reported in (2011) SCC OnLine All 370,
which according to him ,considers a similar situation as is extant in the
present matter. He also relies upon Power Grid Corporation of India
Limited v. Century Textiles and Industries Ltd. Reported in (2017) 5
SCC 143 (paras 18 to 27) in support of his contentions and so also on
Tapan Kumar Mondal v. Union of India reported in (2023) SCC
KHUNTE
1-WP469.19-J.odt
OnLine Cal 94.
5. Mr. Kothari, learned counsel for the respondent No.4, by
referring to section 16(3) of the Telegraph Act, contends that since it
uses the expression "either of the disputing parties" that would
support his contention that the Telegraph Authority under section
10(d) is conferred with the power only to pay the compensation and
not to determine it and for determining the compensation, it is only
the MERC under section 67(4) which would be entitled to do so in
conjunction with the power conferred upon it by virtue of section 3(3)
of the MEWL Rules. He also contends that since the order dated
19/12/2016 of the MERC (Pg.129) which directed the Collector to
determine the compensation was not challenged, it has attained
finality and therefore, it is only the Collector who would be entitled to
determine the compensation and therefore the determination of
compensation by the delegate of the Collector namely the SDO in this
matter, would be correct and proper.
6. The petition thus needs to be determined in light of the above
contentions. It is necessary to note that Mr.Kothari, learned counsel
for the respondent No.4, does not dispute that the petitioner is a
transmission licensee in terms of section 14 of the Electricity Act. This
position is also spelt out from the public notice dated 14/10/2010
(pg.29), which indicates that the petitioner has been granted a
KHUNTE
1-WP469.19-J.odt
transmission license No.1/2010 by the MERC under section 14 of the
Electricity Act to establish and operate amongst others a transmission
line, sub-stations, bays and equipment and related infrastructure for
the transmission line from Akola-II to Aurangabad 765 KV. The said
public notice also in para-3 thereof discloses the intent of the licensor
for the purpose of carrying out the work of transmission licensee, to
apply to the Government of Maharashtra to confer upon it, all the
powers under section 164 of the Electricity Act, 2003 for placing of
electric lines or electric plant for the transmission of electricity and so
also all the powers which a Telegraph Authority possesses under the
Telegraph Act with respect to the placing of telegraph lines and post
for the said purpose. It is also necessary to note that the public notice
dated 14/10/2010 invites objections from one and all as is indicated
from the penultimate paragraph of the same at page 32.
7. By an order dated 13/06/2011, the State of Maharashtra in
exercise of the powers under section 164 of the Electricity Act, 2003
and section 10 of the Telegraph Act conferred powers of a 'Telegraph
Authority' upon the petitioner in respect of the various transmission
lines, including the one indicated above. Thus, the constitution of the
petitioner as a 'Telegraph Authority' under the Telegraph Act by virtue
of the aforesaid order dated 13/06/2011, would be an undisputed
position. That being so, by virtue of the petitioner being constituted
KHUNTE
1-WP469.19-J.odt
as a Telegraph Authority, it became entitled to exercise all the powers
of Telegraph Authority under section 10 of the Telegraph Act,
including the power under section 10(d) to pay compensation to all
persons interested for any damage sustained by them by reason of
exercise of those powers. The contention of Mr.Kothari, learned
counsel for the respondent No.4 that section 10(d) of the Telegraph
Act only contemplates a power to pay and not to determine the
compensation and the compensation has to be determined by the
District Collector, in my considered opinion is misconceived for the
reason that the power to pay compensation as indicated by section
10(d) of the Telegraph Act would include the power to determine
compensation also, for the reason that without determination of such
compensation, there cannot be any payment. Had it been a position
that the District Collector would be the authority to determine the
compensation, which could only be done under section 67(3) of the
Electricity Act, section 10(d) of the Telegraph Act, would have
contained such a provision. However there is total absence of such a
provision therein, in view of which the contention in that regard
cannot be sustained. So also in view of the petitioner, having been
constituted as a 'Telegraph Authority' under the Telegraph Act, for the
purpose of laying down the transmission lines, the applicability of
section 67 of the Electricity Act, 2003, also stands ruled out.
KHUNTE
1-WP469.19-J.odt
8. The further contention of Mr.Kothari, learned counsel for the
respondent No.4 that the construction and operation of the
transmission line is subject to the provisions of the Government
Resolution No.MISC-0210/CR-29/NRG-4 dated 01/11/2010 (pg.182)
would only mean that while determining the compensation, the
appropriate authority/transmission licensee would have to take into
consideration the factors indicated therein and not otherwise.
9. Though much reliance has been placed upon the MEWL Rules,
2012 to contend that it is the District Collector or the officer
authorized by him who has the power to determine the compensation,
it is however necessary to note that Rule 3(4) of the MEWL Rules,
2012 preserves the rights and powers conferred upon the licensee
under section 164 of the Electricity Act, which would indicate that the
powers of the Telegraph Authority as conferred upon the licensee
which would include powers under section 10(d) of the Telegraph Act
stand preserved, in which view of the matter, it would be permissible
for the petitioner as of transmission licensee in it's capacity as a
Telegraph Authority to determine and pay the compensation as
determined by it, meaning thereby that any challenge thereto, could
only be raised by the person dissatisfied with the same, before the
District Judge under section 16(3) of the Telegraph Act and no other
authority would have any jurisdiction to do so. It is also necessary to
KHUNTE
1-WP469.19-J.odt
note that the jurisdiction conferred upon the licensee by virtue of
section 164 of the Electricity Act by conferring the powers of the
Telegraph Authority upon it and consequently by section 10(d) of the
Telegraph Act is statutory in nature and therefore would prevail upon
any jurisdiction created in any other authority, be it the District
Magistrate or the Collector by way of any Rules, as it cannot be
disputed that the Rules are always subservient to a Statutory
provision. It is a settled position of law as held in Secretary A.P.D. Jain
Pathshala and others v. Shivaji Bhagwat More and others reported in
(2011) 13 SCC 99 (para-23 and 24) that apart from constitutional
provisions, tribunals with adjudicatory powers can be created only by
statutes and cannot depend upon the discretion of the executive but
should be governed and regulated by appropriate law enacted by a
legislature. Even otherwise, as indicated above, it would be apparent
that while framing the MEWL Rules, 2012, the State was aware of the
provisions of section 164 of the Electricity Act, 2003 and therefore had
made an according provision in sub-rule (4) of Rule 3 thereof to save
and preserve the powers of Telegraph Authority to be conferred upon
the licensee by virtue of section 164 of the Electricity Act, inviolate.
This would clearly indicate that once the licensee as appointed under
section 14 of the Electricity Act is constituted as a Telegraph Authority
by virtue of the exercise of powers under section 164 of the Electricity
KHUNTE
1-WP469.19-J.odt
Act, 2003, the erection and maintenance of the transmission line will
be governed by the provisions of the Telegraph Act and not by the
Electricity Act, 2003. In view of this position, in case a person is
dissatisfied with the compensation awarded to him by the licensee
acting as a Telegraph Authority, the same can only be questioned by
approaching the District Judge under section 16 (3) of the Telegraphic
Act and not otherwise.
10. A similar position, fell for consideration before the learned
Division Bench of the Allahabad High Court in Prem Pal (supra)
wherein after considering the provisions of the Electricity Act 2003,
the Telegraphic Act, the Works of Licensees Rules, 2006, which are not
disputed to the pari materia with the MEWL Rules, 2012, it was held
that it would be the Telegraph Authority under Section 10(d) of the
Telegraphic Act which would be entitled to determine the
compensation and a person aggrieved by such determination could
move the District Judge under section 16(3) of the Telegraph Act. In
Power Grid Corporation of India Limited (supra) while considering the
empowerment of the District Magistrate for determining the
compensation under Rule 3(2) of the Works of Licensee Rules, 2006,
sub-rule (4) of Rule 3 which is identically worded with sub-rule (4) of
Rule 3 of the MEWL Rules, 2012 was considered and it was held that
once the powers of the Telegraph Authority were conferred upon the
KHUNTE
1-WP469.19-J.odt
licensee any Rules framed in light of the language of sub-rule (4) of
Rule 3 would cease to apply. This would clearly indicate, considering
the language of sub-rule (4) of Rule 3 of the MEWL Rules that the said
Rules would not be applicable to a transmission licensee who has been
conferred with the powers of the Telegraph Authority under section
164 of the Electricity Act, 2003.
11. Kishor Ravindra Zope (supra) relied upon by Mr. Kothari,
counsel for respondent No.4 was a case in which the transmission
company was conferred the powers of a Telegraph Authority under
section 164 of the Electricity Act and though it has been held that
MERC would also be a forum, it has also been held that the invocation
of the jurisdiction of the District Judge under section 16 (3) of the
Telegraph Act was correct and proper and could not be faulted with.
It is however, also necessary to note that the saving of the powers of
the transmission licensee as that of a Telegraph Authority by virtue of
sub-rule (4) of Rule 3 of the Works of Licnesees Rules, 2006 or for
that matter the MEWL Rules, 2012 do not appear to have been
considered by the Court which decided Kishor Ravindra Zope (supra),
considering which, in view of what has been held by the Hon'ble Apex
Court in Power Grid Corporation of India Limited (supra), it would be
the District Judge alone, who would have power to decide a dispute as
to adequacy of compensation under section 16 (3) of the Telegraph
KHUNTE
1-WP469.19-J.odt
Act, once the compensation has been determined by the Telegraph
Authority in exercise of the powers under section 10(d) of the
Telegraph Act and, if a party is aggrieved by the same.
12. That takes me to the contention of Mr.Kothari, learned counsel
for the respondent No.4 that since there was no challenge to the order
of the MERC dated 19/12/2016, the exercise of jurisdiction by the
SDO by virtue of the impugned order cannot be faulted with. In my
considered opinion, this contention is only required to be mentioned
to be rejected for the reason that exercise of jurisdiction, would always
be relatable to the statutory provision. In light of what has been held
above, since it was only the District Judge under section 16(3) of the
Telegraph Act who had jurisdiction to decide any dispute vis-a-vis the
compensation determined and paid by the Telegraph Authority in
exercise of its powers under section 10(d) of the Telegraph Act, any
order passed by the MERC would clearly be non est and would not
benefit the respondent No.4 as such an order, cannot be held to be
something which would create jurisdiction in the SDO or the Collector
which the Statute did not confer upon him.
13. In that light of the matter, the impugned order dated
05/09/2018 passed by the learned SDO (pg.153) will have to be
quashed and set aside as being without jurisdiction and is accordingly
be so done. In view of this, the proceeding bearing MERC/Case
KHUNTE
1-WP469.19-J.odt
No.359 of 2018/0757 filed by the respondent No.4 before the MERC
will also have to be held to be one without jurisdiction. The petition is
accordingly allowed in the above terms.
14. Needless to mention that in case the respondent No.4 chooses
to approach the District Judge by invoking the provisions under
section 16(3) of the Telegraph Act any application filed for that
purpose shall be decided by him on its own merits taking into
consideration all contentions which may be raised therein by the rival
parties. In the circumstance, there shall be no order as to costs.
15. At this stage, Mr.Kothari, learned counsel for the respondent
No.4, seeks stay to the present judgment in order to approach the
Hon'ble Apex Court. The request is declined for the reason that the
order of the SDO has been held to be without jurisdiction.
JUDGE
Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 13/12/2023 10:24:14 KHUNTE
