Calcutta High Court (Appellete Side)
Debabrata Sarkar And Another vs The State Of West Bengal And Others on 27 September, 2023
27th September,
2023
(AK)
17
W.P.A 23088 of 2023
Debabrata Sarkar and another
Vs.
The State of West Bengal and others
Mr. Abhishek Halder
Mr. Swadesh Misra
Ms. Madhurima Basu
...for the petitioners.
Mr. Sumit Kr. Panja
Mr. Sumit Ray
...for the WBSETCL.
Mr. Anirban Ray
Mr. Sk. Md. Galib
Ms. Tanwishree Mukherjee
...for the State.
1. Learned counsel for the petitioners contends that
the petitioners are the owners of a homestead land over
which a high tension electricity connection is being taken
by the respondent/Transmission Licensee.
2. It is contended that in terms of Section 10(d) of the
Indian Telegraph Act, 1885, which has purportedly been
resorted to by the Transmission Licensee, the authority is
required to do as little damage as possible while
exercising the powers conferred under the said Section.
3. Learned counsel for the petitioners places reliance
on the documents annexed to the supplementary affidavit
filed in court today, to indicate that the line could very
well be taken from a submerged portion of the property,
which is immediately adjacent to the portion over which it
is now being taken.
4. It is submitted that such steps on the part of the
Transmission Licensee would lessen the damages caused
to the petitioners.
5. That apart, learned counsel seeks to rely on Section
10(a) of the 1885 Act to indicate that the said Section
operates in respect of cases where the telegraph
installations are maintained by the Central Government
as opposed to the present case.
6. It is argued that the petitioners' valuable rights are
being hampered by the action of the Transmission
Licensee, giving rise to the present writ petition.
7. Learned counsel for the Transmission Licensee
places reliance on the notification which was duly issued
by the Transmission Licensee before carrying out the
work-in-question.
8. It is further submitted that the provisions of
Section 10 of the Indian Telegraph Act, 1885 apply
mutatis mutandis in terms of Section 164 of the Electricity
Act, 2003.
9. Hence, it is argued that the provisions thereof are
applicable to the present Transmission Licensee as well.
10. More importantly, it is argued, about 99.9% of the
work-in-question has been completed and in the coming
October, the Transmission Licensee is due to electrify the
line-in-question.
11. Hence, it would be adverse to the interest of the
public at large if at this stage any deviation is to be
undertaken by the Transmission Licensee.
12. Upon considering the arguments of parties, I find
from the provisions of the concerned statutes that Section
164 of the Electricity Act, 2003, undoubtedly, applies the
provisions of the Indian Telegraph Act, 1885 mutatis
mutandis to the electricity authorities, including
Transmission Licensees as well.
13. The most important provisions of the 1885 Act
which are applicable are Sections 10 and 16 of the said
Act.
14. In the present case, Section 10 is the relevant
provision which enables the authorities, including
Transmission Licensees under the 2003 Act as well, to
place and maintain telegraph lines/electricity lines,
under, over, along or across and posts in or upon any
immovable property.
15. The remedy of the petitioners, who are allegedly
owners of a homestead property which suffers due to
such transmission line, lies in proviso (d) of Section 10
which provides that in such cases, full compensation has
to be paid to the persons interested for any damage
sustained by them by reason of the exercise of those
powers.
16. The Transmission Licensee had already given a
hearing to the petitioners, although barely giving three
days for the petitioners to get prepared for such hearing.
At this juncture, when the work is on the verge of
completion and the line is going to be electrified soon,
public interest would definitely be hampered in the event
the line is directed to be shifted.
17. Thus, the contention of the petitioners as regards
an alternative route for taking the line being available
cannot be looked into at this juncture.
18. In any event, the petitioners were at liberty to point
out the alternative route, if the petitioners so felt, before
the Transmission Licensee at the time when the
petitioners were given a hearing.
19. The only remedy which is available to the
petitioners at this juncture is to claim compensation from
the Transmission Licensee.
20. Definitely, immediately upon completion of the
work, the Transmission Licensee shall grant adequate
compensation to the petitioners and for such purpose,
give a hearing to the petitioners.
21. If aggrieved by the quantum thereof, the petitioners
will be at liberty to approach the appropriate authorities.
22. It may be noted here that the Division Bench
judgment cited by learned counsel for the petitioners is
not applicable in the present circumstances.
21. In the said judgment, no ratio was laid down as
such but it was observed that the writ petitioners therein
did not give consent for drawing the power line for which
the power line could not be drawn over the land of the
writ petitioners. It was further observed that it would be
open to the State electricity Board to draw transmission
line from the plot of others with their consent and in
accordance with law.
23. However, as indicated above, the said judgment
does not lay down any proposition of law as such, nor
does it deal with any of the provisions of law as discussed
in the present order. Moreover, the circumstances of the
said case were not discussed sufficiently to ascertain the
work had been substantially completed there as well.
24. Hence, nothing hinges on the said judgment insofar
as the present case is concerned.
25. Accordingly, WPA 23088 of 2023 is disposed of by
granting liberty to the petitioners to approach the
appropriate forum in the event the petitioners are
dissatisfied with the quantum of compensation granted to
them.
26. The respondent/ Transmission Licensee shall
immediately take steps for grant of adequate
compensation to the petitioners and for such purpose
shall give an opportunity of hearing to the petitioners at
the earliest, preferably within one month from date.
There will be no order as to costs.
Urgent photostat copies of this order, if applied for,
be given to the parties upon compliance of all requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
