St. Mary'S Technological ... vs The West Bengal State Electricity
2023 Latest Caselaw 6464 Cal

                      In the High Court at Calcutta

                    Constitutional Writ Jurisdiction

                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           W.P.A. No.9943 of 2023

           St. Mary's Technological Foundation and Another
                                 Vs.
                   The West Bengal State Electricity
              Transmission Company Limited and Others

     For the petitioners             :     Mr. Utpal Das


     For the WBSETCL                 :     Mr. Sumit Kumar Panja
                                           Mr. Sumit Roy

     Hearing concluded on            :     05.09.2023

     Judgment on                     :     25.09.2023



     Sabyasachi Bhattacharyya, J:-



1.   The petitioner no.1 is a company registered under Section 25 of the

     Companies Act, with the declared object of promoting the educational

     opportunities in the countries, particularly for the Christian Minorities

     and students of weaker sections of society.

2.   The first petitioner is the absolute owner of the plot-in-question. The

     second petitioner is a technical campus established by the first

     petitioner on the said land to serve educational interest of minority

     communities and weaker sections in eastern India and is approved by

     several Universities and educational institutions.
                                          2


3.   The grievance of the petitioners is that the respondent no.1-

Transmission Company is installing High-Tension overhead line over

the said property, thereby virtually rendering it impossible for the

petitioners to set up and run the educational institution proposed for

the religious minorities and weaker sections of society. It is argued

that Article 30 of the Constitution confers rights on minorities to

establish and administer educational institutions. Clause (1A) thereof

stipulates that in making any law providing for compulsory

acquisition of any property of an educational institution established

and administered by minorities, the State shall ensure that the

amount fixed by or determined under such law for acquisition of such

property is such as would not restrict or abrogate the right guaranteed

under that Clause.

4. Learned counsel places reliance on the said provision and argues that

WBSETCL (West Bengal Electricity Transmission Company Limited) is

attempting to violate such constitutionally-guaranteed right of the

petitioners.

5. Learned counsel places reliance on the West Bengal Government's

Policy and Guidelines for setting up private universities dated January

31, 2013, which was notified in the Official Gazette on February 1,

2013. As per the requirement of the same, in order to set up a

university, the land on which the same is set up has to be

unencumbered, which provision would not be met if the High Tension

(HT) line is continued to be installed over the said property.

6. Learned counsel for the petitioner places reliance on the judgment of

Rev. Sidhajbhai Sabhai and others Vs. State of Bombay and another,

where the purpose of Article 31(1) was discussed. The Supreme Court

observed, inter alia, that the right established under the said provision

is a fundamental right declared in terms absolute. Unlike the

fundamental freedoms guaranteed by Article 19, it is not subject to

reasonable restrictions, but is intended to be a real right for the

protection of the minorities in the matter of setting up of educational

institutions of their own choice. The Supreme Court further observed

that the right is intended to be effective and is not to be whittled down

by so-called regulative measures conceived in the interest not of the

minority educational institution, but of the public or the nation as a

whole. Otherwise, the right guaranteed under Article 30(1) will be but

a "teasing illusion", a promise of unreality.

7. Learned counsel next cites The Society of St. Josephs College Vs. Union

of India and others, where the Supreme Court, inter alia, held that it

is necessary that in a law that provides, in general, for the compulsory

acquisition of property, there should be enacted, by amendment

thereof, a provision that relates specifically to the acquisition of the

property of minority educational institutions which ensures that the

amount payable for such acquisition will not in any manner impair

the right conferred upon the minorities by Article 30.

8. It is argued that as per the AITCE Rules, State Rules and the UGC

(University Grants Commission) Rules, affiliation under which in

compliance whereof is necessary for setting up the educational

institution, unencumbered property is a must for setting up a

university.

9. It is argued by the petitioners, while controverting the submission of

the respondent no.1 that the writ is bad for non-joinder of necessary

party, that other entities, if any, are in possession over a small part of

the area sought to be encroached by the WBSETCL and, as such, are

not necessary parties.

10. Learned counsel for the WBSETCL argues that the right conferred

under Article 30 is not absolute. By reading out the language of

Article 19 of the Constitution, it is argued that the same pertains to all

citizens of India whereas Article 30 pertains only to minority

communities. Even Article 21 of the Constitution, it is submitted,

refers to all persons, which concept is wider than particular minority

communities. It is argued that the courts have settled clearly that the

right to get electricity connection is a fundamental right, being a

component of Article 21 of the Constitution of India. The transmission

line-in-question shall cater to the needs of numerous people in several

localities and, as such, such public project ought not to be stalled

merely for the inconvenience of a particular institution.

11. Learned counsel, in the said context, places reliance on coordinate

Bench judgments of this Court reported at AIR 2008 Cal 47 [Molay

Kumar Acharya Vs. Chairman-cum-Managing Director, W.B. State

Electricity Distribution Co. Ltd. & Ors.] and AIR 2009 Cal 87 [Fashion

Proprietor Aswani Kumar Maity Vs. West Bengal Electricity Distribution

Co. Ltd. & Ors.] in both of which Section 43 was held to be associated

with Article 21, conferring the right on an individual in possession of

premises not to be dispossessed therefrom except in accordance with

law, implicit in which is the right to get electricity.

12. Learned counsel for the WBSETCL next cites a Supreme Court

judgment reported at (2017) 5 SCC 143 [Power Grid Corpn. of India

Ltd. v. Century Textiles & Industries Ltd.], where the Supreme Court

held that within 410 towers to be erected, 408 had already been

erected and the project-in-question was at the verge of completion

when the writ petition was filed. It was observed that not only was it

unfeasible to change the alignment as almost entire work had already

been completed but also the transmission project was of national

importance to benefit public at large and to all States through which

the said transmission line passed through.

13. 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 the country and

the economy and the well-being and progress of citizens, it was held.

14. Learned counsel for the WBSETCL next argues that in the present

case, about 17 out of the projected 20 towers have already been

installed. Moreover, a Notification was duly published in terms of law

regarding the concerned Mouza, before installing the said towers. The

petitioners did not, at any point of time, object to such installation.

15. It is next argued that the towers-in-question will not be installed on

the property of the petitioners, but only the HT line will run over the

same. In any event, the lines would run at a height of 14.2 meters

above the ground level and would mostly pass over water-bodies.

Hence, the petitioners will not be affected adversely in any manner.

16. It is argued that even the petitioners have sought electricity

connection and are using such connection and have expressed their

need to draw electricity from High Tension Line.

17. That apart, learned counsel argues that the installation of HT lines

does not amount to acquisition of the property but mere user of the

same for a limited purpose.

18. Learned counsel cites Islamic Academy of Education and Another Vs.

State of Karnataka and Others, reported at (2003) 6 SCC 697, for the

proposition that Article 30 is not an absolute right. UP TO THIS

19. Thus, it is contended, the writ petition ought to be dismissed.

20. Heard learned counsel for the parties. At the outset, the interplay

between Article 30(1A) and the other fundamental rights are required

to be ascertained in the light of the judgments cited by the parties.

21. Insofar as Rev. Sidhajbhai Sabhai (supra) is concerned, the said

judgment was delivered by the Supreme Court on August 30, 1962,

whereas sub-article (1A) of Article 30 of the Constitution was

introduced much later, by the 44th Amendment Act of the Constitution

with effect from June 20, 1979. Hence, nothing in the said judgment

pertains to the nuances of sub-article (1A) of the Constitution, which

is the plinth of the petitioners' case. In any event, the Supreme Court,

in the said judgment, had observed in the context of Article 30(1A)

that the same is an absolute right and cannot be diluted by operation

of Article 19.

22. Such proposition is not disputed in the present case.

23. Insofar as The Society of St. Josephs College (supra) is concerned, the

Supreme Court, while considering the context of Clause (1A), refused

to accept the submission that the provisions of Clause (1A) of Article

30 should be read into the existing Land Acquisition Act. The

Supreme Court observed that it is not necessary that the statute

should be enacted exclusively for the compulsory acquisition of the

property of minority educational institutions but it is necessary that in

a law that provides in general for the compulsory acquisition of

property, there should be enacted by amendment a provision that

relates specifically to the acquisition of such properties which ensures

that the amount payable for such acquisition will not in any manner

impair the right conferred upon the minorities by Article 30.

24. In Islamic Academy of Education (supra) the Supreme Court, while

discussing previous judgments, observed that minorities have a

fundamental right to establish and administer educational institutions

of their own choice. It was observed that the right under Clause (1) of

Article 30 is not absolute, and is subject to reasonable regulations

which inter alia may be framed having regard to the public interest

and national interest of the country. It was also observed that the

right conferred under Article 30(1) cannot be used absolutely and

unreasonably. In paragraph 101 of the said judgment, cited by the

WBSETCL, the Supreme Court observed that it will not be a correct

proposition of law, on the face of clause (1A) of Article 30 of the

Constitution, to contend that the properties of the minority

educational institutions cannot be taken over at all. The only right

which they have is to get reasonable compensation so as to enable

them to establish another educational institution at some other place.

It is not necessary to raise a hypothetical question to drive home a

point which is of not much consequence and as and when laws are

made, their constitutionality will have to be tested on their own merit.

25. The Supreme Court deprecated pre-emptive answers being given on

hypothetical questions. In the event running of a minority institution

is found to be against the national interest or permissible limits of

regulations, it was held that it can be taken over with a view to

maintain morality, public order, health, national interest and similar

such considerations, which would empower the State to close the

institution or take over the management thereof, although the same

may be done only in extreme cases. In case of gross mismanagement

and violation of the conditions of essentiality certificate also, the State

may be held to have the power to close down the institution.

26. Insofar as the present case is concerned, such an extreme situation

has not occurred, to prevent the educational institutions being set up

by the petitioners.

27. As per the ratio laid down in Islamic Academy of Education (supra), the

right conferred under Article 30(1) has been held not to be absolute

but subject to reasonable exceptions and overwhelming public

interest.

28. In The Society of St. Josephs College (supra), the Supreme Court laid

stress on the fact that, be it by amendment to an existing Act or

framing a new Act for acquisition, due provisions are to be made for

granting compensation to the minority institutions, commensurate

with the right conferred under Article 30(1).

29. Hence, reading the above judgments in proper perspective, the bar on

the State is not to acquire any property belonging to a minority

institution altogether but with regard to payment of adequate

compensation to such a minority institution.

30. Inasmuch as the arguments of the respondents are concerned, it is

well-settled that the right to get electricity has been read as a

component of Article 21 of the Constitution, conferring the right to life.

31. Seen in proper perspective, Power Grid Corpn. of India Ltd. (supra) also

gave priority to the public nature of a project and held that under 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, necessary for growth and development of

a country and economy and the wellbeing and progress of the citizens.

32. The key is, thus, to strike a balance between Article 30 of the

Constitution and overwhelming public interest.

33. In the present case, there a basic fallacy in the argument of the

petitioners. The right exercised by the transmission company under

the Telegraph Act, 1885 has been enabled in respect of electricity

transmission companies also by virtue of Section 164 of the Electricity

Act, 2003, which empowers the authority to place and maintain a line

under, over, along or across and posts in or upon, any immovable

property under Section 10 of the Telegraph Act, 1885.

34. Section 16 envisages disputes to be referred to the District Magistrate

or, in case of insufficiency of compensation, applications being made

to the concerned District Judge.

35. Section 16(4) provides that if any dispute arises as to the persons

entitled to receive compensation or the proportion in which persons

interested are entitled to share it, the telegraph authority may pay to

the court of the District Judge, "such amount as he deems sufficient"

or where 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.

36. A comprehensive reading of Section 16 shows that the Act has not

enumerated any specific modality of calculating compensation but has

left the same open, to be decided in case of a dispute by the District

Judge.

37. It is well-settled by the various judgments of the Supreme Court cited

by both sides that Article 30(1A) does not prevent the State even from

acquiring a property, subject to giving appropriate compensation.

38. The quantum of appropriate compensation, as dealt with in St.

Josheph (supra) as well as Islamic Academy of Education (supra), has

to be commensurate with Article 30(1), which provides that all

minorities shall have the right to establish and administer educational

institutions of their choice. Clause (1A) provides that in making any

law providing for compulsory acquisition of such properties, the State

shall ensure that the amount fixed by or determined under such law

for the acquisition of such property is "such as would not restrict or

abrogate the right guaranteed under" Clause (1).

39. Hence, read in conjunction, Clauses (1A) and (1) of Article 30 provide

that the compensation to be granted on acquisition of such a property

is to be sufficient to enable the minority institution to have the right to

establish and administer educational institutions of their choice, the

presumption being that the compensation would be adequate to have

an alternative location for setting up such institution.

40. Read in such context, in any event, it would be premature at this

juncture for the petitioners to seek shifting of the route of the

electricity line sought to be installed by the transmission company.

The appropriate stage for demanding compensation by the petitioners

would only be once the work is completed and the compensation to be

granted, if at all, to the petitioners could be assessed by the

appropriate authority. In case of dispute, the petitioners can very well

approach the District Judge having jurisdiction to ventilate their

grievances and claim adequate compensation in the light of Article

30(1A), read with Article 30(1) of the Constitution, read with Section

16 of the Telegraph Act.

41. There is a more basic question involved here. It is, whether the

drawing of High Tension Line over the property amounts to

"acquisition" of property at all. The term "acquisition" connotes that

the entire property is vested in the State and the control thereof is

taken over from the land owner.

42. However, the right conferred under Section 164 of the Electricity Act,

2003, read with Section 10 of the Telegraph Act, 1885, is a much

lesser right, being only to draw the line over, under, along or across

the property. At the best, the authorities, under Section 11 of the said

Act, have a further limited right to enter on the property in order to

repair or remove the lines or posts.

43. Thus, the invocation of Article 30(1A) of the Constitution is

misconceived in the present case, since the act complained of does not

amount to any acquisition of the land at all.

44. Moreover, in the facts of the present case, the line is being drawn at a

height of over 14.2 meters from the property. Most of the property is a

water body.

45. Hence, under no stretch of imagination can the drawal of High

Tension line be classified as "acquisition" to attract the rigours of

Article 30(1A).

46. Another important facet of the matter is that already 17 out of 20

towers have been installed under the concerned project of

electrification. The High Tension transmission line is to cater to huge

sections of society, in the locality and elsewhere, including the

petitioners themselves, who would also be beneficiaries thereof.

47. Such overwhelming public interest cannot be brushed aside to give

precedence to the right of the petitioners under Article 30(1), as held

by the Five-Judge Bench in Islamic Academy (supra).

48. In view of the above considerations, it cannot be said that the

WBSETCL is to be restrained from drawing the High Tension Line over

the property of the petitioners.

49. Hence, WPA No.9943 of 2023 is dismissed without any order as to

costs. Nothing in this order, however, shall prevent the petitioners, if

they so choose, to approach the concerned District Judge having

territorial jurisdiction over the area for adequate compensation,

commensurate with the rights of the petitioners after the work-in-

question is complete. If such an approach is made, the District Judge

shall decide the same in accordance with law, upon giving adequate

opportunity to all concerned, without being influenced on merits in

any manner by the observations made above.

50. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )