Gauhati High Court
WP(C)/4294/2024 on 18 February, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010167852024
2025:GAU-AS:2011
THE GAUHATI HIGH COURT
[THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH]
WRIT PETITION [C] NO. 4294/2024
Nitul Boruah, S/O- Boparam Boruah, R/O-
Village- Kachua, P.O. Kachua, P.S. Bihpuria,
District- Lakhimpur, Assam, Pin- 784165.
..................Petitioner
-VERSUS-
1. The Union of India, represented by the
Secretary to the Government of India, Ministry
of Power, Sastri Bhawan, New Delhi, Pin-
110001.
2. The State of Assam, represented by the
Secretary to the Government of Assam, Power
Department, Dispur, Guwahati- 06.
3. The Power Grid Corporation of India Limited,
represented by its Chairman C/O- the Deputy
Manager, Biswanath Chariali, Power Grid
Corporation of India Limited, P.O. Biswanath
Chaiali, District-Biswanath, Assam, Pin-
784176.
4. The General Manager, Biswanath Chariali,
Power Grid Corporation of India Limited, C/O.
The Deputy Manager, Biswanath Chariali,
Power Grid Corporation of India Limited, P.O.
Biswanath Chariali, District-Biswanath, Assam,
Pin-784176.
Page 1 of 21
5. The Deputy General Manager, Biswanath
Chariali, Power Grid Corporation of India
Limited, P.O. Biswanath Chaiali, District-
Biswanath, Assam, Pin- 784176.
6. The District Commissioner of Lakhimpur
District, P.O. North Lakhimpur, Pin- 787001.
...................Respondents
Advocates :
Petitioner : Mr. M.A. Sheikh, Advocate.
Respondent nos. 2, & 6 : Ms. M. Barman,
Junior Government Advocate, Assam.
Respondent nos. 3, 4 & 5 : Mr. N.C. Das, Senior Advocate,
Ms. J. Baishya, Advocate.
Date of Hearing : 18.02.2025
Date of Judgment & Order : 18.02.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
The present writ petition under Article 226 of the Constitution of India is
instituted by the petitioner seeking inter-alia a direction to the respondent
authorities in the Power Grid Corporation of India Limited [PGCIL], that is, the
respondent nos. 3 - 5 to pay a sum of Rs. 44,92,800/- as compensation for
acquisition of the petitioner's parcel of land, indicated in Schedule-A.
2. The case projected by the petitioner, in brief, is that the petitioner became the
owner of a parcel of land measuring 1 Bigha 2 Katha 17 Lessas, covered by Dag
no. 321 & Dag no. 322 and Patta no. 107, situate at Village - Kachua, Mouza -
Dhalpur, Narayanpur Revenue Circle, District - Lakhimpur ['the subject-land',
for short] on purchase by way of a Registered Sale Deed dated 30.01.2019.
After purchase of the subject-land, the petitioner got his name mutated in the
revenue records and the Record of Rights [Jamabandi]. Subsequent to
becoming the owner of the subject-land and taking over its possession, the
petitioner constructed an Assam Type dwelling house on the subject-land. The
petitioner has stated that after construction of the Assam Type house, he and
his family started to live in the Assam Type house.
3. The respondent PGCIL authorities started a project of 'Installation of 400 KV
D/C [Twin Lapwing] Lower Subansiri-Biswanath Chariali Transmission Line'
['the Project' for short] initially, during 2009-2011. At that point of time, tower
foundation works were completed but subsequent construction activities were
kept on hold. It was in the year 2021, the works for the said Project were
resumed. In order to assess the damages likely to be caused to the lands falling
in the approved route of the Transmission Line of the Project survey was
conducted by the District Administration in consultation with the respondent
PGCIL authorities.
4. The subject-land of the petitioner was found to have fallen in the approved
route of the Transmission Line of the Project under reference. On the basis of
the assessments made during the survey on the subject-land, the respondent
authorities had arrived at an amount of Rs. 1,51,441.50 towards compensation
towards diminution of value, which amounted to 15% of the land value of the
subject-land, for the Right of Way [RoW] corridor of 46 meters, that is, 23
meters either side from the center line. According to the respondent PGCIL
authorities, the said amount was arrived at on the basis of the Circle Rate
provided by the jurisdictional District Commissioner, Lakhimpur as diminution
value of the subject-land due to erection of the Transmission Line of the Project
in question. At the same time, the petitioner was disbursed a sum of Rs.
1,02,230/- towards compensation for Zirat on the subject-land. In addition, an
amount of Rs. 21,95,627/- has been disbursed to petitioner towards the value
of the Assam Type house which the petitioner stated to have constructed on
the subject-land.
5. I have heard Mr. M.A. Sheikh, learned counsel for the petitioner; Ms. M.
Barman, learned Junior Government Advocate, Assam for the respondent nos. 2
& 6; and Mr. N.C. Das, learned Senior Counsel assisted by Ms. J. Baishya,
learned counsel for the respondent nos. 3, 4 & 5.
6. Mr. Sheikh, learned counsel for the petitioner has submitted that due to
stringing of the 400 KV D/C Transmission Line over the subject-land, damages
have been caused to the entire subject-land. Assessment was made by taking a
rate per Bigha @ Rs. 7,00,000/-. But, the Zonal Valuation / Circle Rate in
respect of land like the subject-land, at the relevant time, was much higher in
view of its strategic location. Mr. Sheikh, by referring to an Order dated
19.10.2021 passed by the Deputy Commissioner, Lakhimpur under Memo no.
LRA.2/2017/218, has strenuously contended that the said Order was passed
pursuant to a resolution adopted by the Sub-Divisional Land Advisory
Committee [SDLAC] that the compensation value in respect of the lands which
are affected for laying of transmission lines ought to be fixed in a manner to
match the compensation amount receivable under the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 ['the RFCTLARR Act, 2013', for short]. He has further
submitted that after the Order dated 19.10.2021, the Deputy Commissioner
wrote to the respondent no. 5 vide an Office Letter no. LRA.7/Misc./2019/60
dated 17.08.2022 whereby the respondent PGCIL authorities were requested to
provide a compensation amount of Rs. 44,92,800/- in respect of the subject-
land as the compensation offered earlier by the respondent PGCIL authorities
against the said land @ 15% of the land value @ Rs. 7,00,000/- per Bigha was
low in comparison to the losses suffered by the petitioner in respect of the
subject-land. Basing on the Order dated 19.10.2021 and the Office Letter dated
17.08.2022 of the Deputy Commissioner, Lakhimpur [presently, the District
Commissioner, Lakhimpur], Mr. Sheikh has submitted that the respondent
PGCIL authorities had neither acted upon the request of the Deputy
Commissioner, Lakhimpur regarding disbursement of the compensation amount
of Rs. 44,92,800/- nor had disbursed the amount of Rs. 1,51,441.50 to the
petitioner till date. He has further submitted that the provisions of the
RFCTLARR Act, 2013 are to be applied in case of acquisition of the subject-land
of the petitioner in the case in hand.
7. Mr. Das, learned Senior Counsel appearing for the respondent PGCIL authorities
has submitted that the sum of Rs. 1,51,441.50 was arrived at, firstly, after
making a survey of the subject-land and, secondly, the area of land out of the
subject-land likely to be affected; and the area which would remain unaffected
within the subject-land, after stringing of the Transmission Line, for new
construction. He has further submitted that the land diminution value was taken
@ 15% of the then existing Circle Rate, provided by the Deputy Commissioner,
Lakhimpur @ Rs. 7,00,000/- per Bigha. He has further contended that since no
process of acquisition of land is involved in the process of stringing the
Transmission Line in question and only the Right of Way [RoW] has been
obtained by the process, the applicability of the provisions of the RFCTLARR
Act, 2013 does not arise. It is the provisions of the Electricity Act, 2003 and the
Telegraph Act, 1885, which are applicable for the purpose of acquiring the
Right of Way [RoW] in case of transmission lines like the Transmission Line of
the Project referred herein, which are only applicable. He has, thus, contended
that the writ petition lacks merit and, therefore, is deserved to be dismissed.
8. Ms. Barman, learned Junior Government Advocate, Assam representing the
respondent nos. 2 & 6 has submitted that for the Right of Way [RoW] taken
over by the respondent PGCIL authorities, assessments and payments were
made as per the provisions of the Indian Telegraph Act, 1885 and the Indian
Electricity Act, 2003. Ms. Barman has adopted the submissions of the learned
Senior Counsel for the respondent PGCIL authorities on the point that no
process of land acquisition was initiated by the respondent authorities in the
case in hand as per the provisions of the RFCTLARR Act, 2013 as it was not the
requirement. Ms. Barman has submitted that it has been clarified by the
respondent no. 6 in the affidavit-in-opposition that an assessment of the land
compensation amount of Rs. 44,92,800/- was made as per the provisions of the
RFCTLARR Act, 2013 based on the Order dated 19.10.2021, passed after a
discussion in the SDLAC meeting, held on 09.10.2021, for comparison purpose,
at the instance of the petitioner. Replying to the contention of the learned
counsel for the petitioner, Ms. Barman has submitted that the Deputy
Commissioner, Lakhimpur [the respondent no. 6] has himself admitted in the
affidavit-in-opposition that the Deputy Commissioner cannot retain jurisdiction
to make further assessment after making an initial assessment under the
provisions of the Indian Telegraph Act, 1885 and as per the guidelines of the
Government of India laid down in a Notification dated 15.10.2015 and the
Government of Assam, notified vide a Notification dated 10.03.2017.
9. I have given due consideration to the submissions of the learned counsel for
the parties and have also gone through the materials brought on record by the
parties through their pleadings.
10. It is not in doubt from the materials on record that the Transmission Line of the
Project in question, that is, '400 KV D/C [Twin Lapwing] Lower Subansiri-
Biswanath Chariali Transmission Line' has been stringed / installed over the
subject-land, belonging to the petitioner.
11. There is no complaint whatsoever as regards the amounts of compensation
assessed and disbursed towards Zirat and towards the value of the Assam Type
house standing on the subject-land. The basis of the claim of the petitioner for
the direction to disburse the amount of Rs. 44,92,800/- is a report submitted by
the Office of the Deputy Commissioner, Lakhimpur before the respondent
PGCIL authorities on 17.08.2022.
12. The averments made in the affidavit-in-opposition of the respondent authorities
in the PGCIL go to indicate that stringing of '400 KV D/C [Twin Lapwing] Lower
Subansiri - Biswanath Chariali Transmission Line' was done partly over the
subject-land, belonging to the petitioner, after obtaining the Right of Way
[RoW]/Right of User [RoU] from the appropriate Government. With regard to
the subject-plot belonging to the petitioner is concerned, it has been averred
that the Transmission Line has gone partly over the subject-land. It has been
further averred that the officials of the PGCIL along with the revenue staff of
the District Administration conducted a survey on the subject-land, in presence
of the petitioner, on 14.08.2023, after assessment of the diminution value of
that part of the subject-land which is affected, to see the feasibility of
accommodating an identical house, like the existing one, leaving the electric
zone of transmission. It has been averred that during survey, it was found that
sufficient space would be available for the construction of a new house of same
dimensions as that of the existing one on the subject-land. It is further averred
that after conducting the survey, both the Deputy Commissioner, Lakhimpur
and the petitioner were informed by an Office Letter dated 28.10.2023 that the
PGCIL would provide land compensation as per the Gazette Notification bearing
no. PEL-219/2015/9 of the Government of Assam and as per the provisions of
Sections 67, Section 68 and Section 164 of the Electricity Act, 2003 and
compensation amounts had been assessed for the petitioner accordingly. It has
further enclosed the Report of the joint survey dated 14.08.2023 apprising the
Deputy Commissioner, Lakhimpur and the petitioner about the availability of
space within the subject-land.
13. In matters of acquiring Rights of Way [RoW] for stringing of transmission lines,
the provisions of the Indian Telegraph Act, 1885; the Electricity Act, 2003; and
the RFCTLARR Act, 2013 are of import and relevance. In order to examine the
contention of the petitioner that the RFCTLARR Act, 2013 has to be made
applicable in this case, it may also be relevant to refer the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement [Removal of Difficulties] Order, 2015.
14. Before dwelling on the issues raised by the petitioner herein, it would be
apposite to refer to the provisions of Section 10 and Section 16 of the Indian
Telegraph Act, 1885 ['the Telegraph Act', for short], which read as under :-
10. Power for telegraph authority to place and maintain telegraph lines
and posts.-- The telegraph authority may, from time to time, place and
maintain a telegraph line under, over, along or across, and posts in or upon,
any immovable property :
Provided that --
[a] the telegraph authority shall not exercise the powers conferred by this
section except for the purposes of a telegraph established or
maintained by the Central Government, or to be so established or
maintained;
[b] the Central Government shall not acquire any right other than that of
user only in the property under, over, along, across, in or upon which
the telegraph authority places any telegraph line or post; and
[c] except as hereinafter provided, the telegraph authority shall not
exercise those powers in respect of any property vested in or under the
control or management of any local authority, without the permission of
that authority; and
[d] in the exercise of the powers conferred by this section, the telegraph
authority shall do as little damage as possible, and, when it has
exercised those powers in respect of any property other than that
referred to in clause [c], shall pay full compensation to all persons
interested for any damage sustained by them by reason of the exercise
of those powers.
16. Exercise of powers conferred by section 10, and disputes as to
compensation, in case of property other than that of a local authority.--
[1] If the exercise of the powers mentioned in Section 10 in respect of
property referred to in clause [d] of that Section is resisted or
obstructed, the District Magistrate may, in his discretion, order that the
telegraph authority shall be permitted to exercise them.
[2] If, after the making of an order under sub-section [1], any person
resists the exercise of those powers, or, having control over the
property, does not give all facilities for their being exercised, he shall
be deemed to have committed an offence under Section 188 of the
Indian Penal Code, 1860 [45 of 1860].
[3] If any dispute arises concerning the sufficiency of the compensation to
be paid under Section 10, clause [d], it shall, on application for that
purpose by either of the disputing parties to the District Judge within
whose jurisdiction the property is situate, be determined by him.
[4] If any dispute arises as to the persons entitled to receive
compensation, or as to the proportions in which the persons interested
are entitled to share in it, the telegraph authority may pay into the Court
of the District Judge such amount as he deems sufficient or, where all
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; and the District Judge, after giving notice to the parties
and hearing such of them as desire to be heard, shall determine the
persons entitled to receive the compensation or, as the case may be,
the proportions in which the persons interested are entitled to share in
it.
[5] Every determination of a dispute by a District Judge under sub-section
[3], or sub-section [4] shall be final :
Provided that nothing in this sub-section shall affect the right of any
person to recover by suit the whole or any part of any compensation
paid by the telegraph authority, from the person who has received the
same.
15. Section 10 of the Telegraph Act speaks about the power of the telegraph
authority to place and maintain telegraph lines and posts. Clause [b] of Section
10 has empowered the telegraph authority to place and maintain a telegraph
line under, over, along or across, in or upon any immovable property as a Right
of User [RoU]. At the same time, the provision of Section 10 [b] of the
Telegraph Act has made specific that while acquiring the power to install a
telegraph line, the Government does not acquire any right other than that of
user in the property. Section 10 [d] of the Telegraph Act has laid down that the
telegraph authority while exercising such powers, shall do as little damage as
possible, and when the telegraph authority exercises the powers in respect of
immovable properties, it shall have to pay full compensation to all persons
interested for any damage sustained by reason of the exercise of the Right to
Use by the telegraph authority.
16. Section 68 of the Electricity Act, 2003 ['the Electricity Act', for short] mentions
about overhead lines. As per sub-section [1] of Section 68, an overhead line
can be installed or can be kept installed above ground in accordance with the
provisions of sub-section [2] thereof, with prior approval of the Appropriate
Government. As per sub-section [3] of Section 68, the Appropriate Government
can impose such conditions as appears to it to be necessary while granting
approval under sub-section [1]. Section 69 of the Electricity Act speaks of notice
to the telegraph authority. Section 164 of the Electricity Act has, inter-alia,
provided that the Appropriate Government may, by order in writing, for the
placing of electric lines or electrical plant for the transmission of electricity,
confer upon any public officer, licensee or any other person engaged in the
business of electricity under the Electricity Act, subject to such conditions and
restrictions, if any, as the Appropriate Government may think fit to impose and
to the provisions of the Telegraph Act, any of the powers which the telegraph
authority possesses under the Telegraph Act with respect to the placing of
telegraph lines and posts for the purposes of a telegraph established or
maintained.
17. It is by virtue of the provisions contained in Section 68, Section 69 and Section
164 of the Electricity Act, the Appropriate Government can confer upon a
licensee or any other person engaged in the business of supplying electricity
under the Electricity Act, subject to such conditions and restrictions, any of the
powers possessed by the telegraph authority under the Telegraph Act with
respect to placing of telegraph lines and posts, for the purpose of placing of
electric lines for transmission of electricity.
18. As per Section 2 [38] of the Electricity Act, 'licence' means a licence granted
under Section 14 of the said Act whereas as per Section 2[39] of the Electricity
Act, 'licensee' means a person who has been granted a licence under Section
14. The PGCIL is a Central Transmission Utility [CTU]. A Central Transmission
Utility [CTU] is deemed to be a transmission licensee under the second proviso
to Section 14 of the Electricity Act.
19. As has been noticed above, Section 10 to the Telegraph Act has, thus,
empowered the telegraph authority to place and maintain a telegraph line
under, over, along or across and post in or upon any immovable property. By
virtue of the provisions of Section 68, Section 69 and Section 164 of the
Electricity Act, any public officer, licensee or any other person engaged in the
business of supply electricity under the said Act have been similarly
empowered. The provision of Section 10 [b] of the Telegraph Act has made it
specific that while acquiring the power to lay down telegraph lines, the Central
Government does not acquire any right other than that of user in the property.
As per Section 2 [5] of the Electricity Act, the Appropriate Government under
the Electricity Act can be either the Central Government or the State
Government. Section 10 [d] of the Telegraph Act has asked the telegraph
authority to do as little damage as possible and when it exercises the powers in
respect of any property, to pay full compensation to all persons interested for
any damage sustained by them by reason of the exercise of those powers. The
provisions contained in the entire Telegraph Act do not contemplate any
acquisition of land. Thus, when powers under the Telegraph Act read with the
Electricity Act are conferred by the Appropriate Government on any person
including a licensee or a transmission license/utility like the respondent CGCIL
to install any transmission line, no process of acquisition of any immovable
property is involved as it acquires only the right of user in the property.
20. The Government of India in the Ministry of Power after analyzing all the issues
related to Right of Way [RoW] for laying of transmission lines in the country
and in order to formulate a uniform methodology for payment of compensation
in that connection, had taken the views of the State Governments and
thereafter, formulated a set of guidelines for determining the compensation
towards 'damages' as stipulated in Section 67 and Section 68 of the Electricity
Act read with Section 10 and Section 16 of the Telegraph Act and the said
guidelines have been incorporated in a Circular bearing no. 03/07/2015-Trans
dated 15.10.2015 of the Ministry of Power, Government of India. It has been
provided therein that such compensation towards damages would be in addition
to the compensation towards normal crop and tree damages and the
compensation amount would be payable only for transmission lines supported
by a tower base of 66 KV and above and not for sub-transmission and
distribution lines below 66 KV. By the Circular dated 15.10.2015, all the States /
Union Territories have been requested to take suitable decisions regarding
adoption of the guidelines considering that acquisition of land is a State subject.
21. Following the above guidelines formulated by the Government of India, the
Government of Assam has taken a decision that a similar payment methodology
towards compensation shall also be adopted in the State of Assam. Accordingly,
the Government of Assam in the Power [Electricity] Department has notified the
following rates for payment of compensation towards damages with regard to
Right of Way [RoW] for transmission lines by a Notification bearing no.
PEL.219/2015/91 dated 10.03.2017, which was published in the Assam Gazette
in its issue dated 16.05.2017, :-
Compensation @ 85% of land value as determined by Deputy
Commissioner / BTC or any other competent authority based on Circle
rate / Guideline value / Stamp Act rates for tower base area [between
four legs at ground level] impacted severely due to installation of tower
/ pylon structure.
Compensation towards diminution of land value in the width of Right of
Way [RoW] corridor due laying of transmission line and imposing
certain restriction at a maximum rate of 15% of land value as
determined by Deputy Commissioner or any other competent authority
based on Circle rate / Guideline value / Stamp Act rates.
For this purpose, the width RoW corridor shall not be more
than that prescribed in Table at Annexure-I and shall not be
less than the width directly below the conductors.
In areas where land owner / owners have been offered / accepted
alternate mode of compensation by concerned corporation /
Municipality under Transfer Development Rights [TDR] policy of State,
the licensee / utility shall deposit compensation amount as per [i] & [ii]
above with the concerned Corporation / Municipality / Local Body or
the State Government.
The above guidelines shall be effective from the date of issuance of the
above mentioned Government of India guidelines and shall be
applicable for only those new transmission line / projects where
construction have started after this date, i.e. 15.10.2015. This guideline
shall not be applicable for existing transmission lines which are already
in service or under construction before the aforesaid date, or for
maintenance of any existing transmission line.
Annexure-I
RoW width for different voltage line*
Transmission Voltage Width of Right of Way [in Meters]
Width of Right of Way is as per Ministry of Environment & Forests [MoEF]
guidelines dated 05.05.2014.
This issues with the concurrence of Revenue & Disaster Management Department,
Government of Assam, as well as the Finance Department, Government of Assam.
22. The petitioner has placed heavy reliance in the Order dated 19.10.2021 and the
Office Letter dated 17.08.2022 to claim that the provisions of the RFCTLARR
Act, 2013 are to be made applicable for the purpose of calculating the
compensation in respect of acquisition of the subject-land.
23. In view of the above contention, a reference to the provisions of the RFCTLARR
[Removal of Difficulties] Order, 2015 and the provisions contained in Section
105 of the RFCTLARR Act, 2013 appear necessary.
24. Section 105, RFCTLARR Act, 2013 has mentioned that the provisions of the
RFCTLARR Act, 2013 are not to apply in certain cases or to apply with certain
modifications. As per sub-section [1] of Section 105, the provisions of the Act,
subject to sub-section [3], shall not apply to the enactments relating to land
acquisition specified in the Fourth Schedule. A power has been provided in
Section 105 [2] to the Central Government, by notification, to omit or add to
the enactments relating to land acquisition specified in the Fourth Schedule.
The provision contained in sub-section [3] of Section 105 of the RFCTLARR Act,
2013 has provided for issuing of notification to make the provisions of the
RFCTLARR Act, 2013 relating to the determination of the compensation,
rehabilitation and resettlement applicable to cases of land acquisition under the
enactments specified in the Fourth Schedule to the RFCTLARR Act, 2013. As per
sub-section [3] of Section 105, the Central Government shall, by notification,
within one year from the date of commencement of the RFCTLARR Act, 2013
direct that any of the provisions of the RFCTLARR Act, 2013 relating to the
determination of compensation in accordance with the First Schedule and
rehabilitation and resettlement specified in the Second and Third Schedules,
being beneficial to the affected families, shall apply to the cases of land
acquisition under the enactments specified in the Fourth Schedule or shall apply
with such exceptions or modifications that do not reduce the compensation or
dilute the provisions of the Act relating to compensation or rehabilitation and
resettlement as may be specified in the notification, as the case may be. The
RFCTLARR Act, 2013 came into effect from 01.01.2014. When no notification
envisaged under Section 105 [3] of the RFCTLARR Act, 2013 came to be issued,
an ordinance by the name of RFTCLARR [Amendment] Ordinance, 2014 was
promulgated on 31.12.2014 and during the subsequent period similar
ordinances were promulgated extending the provisions of the RFTCLARR Act,
2013 relating to the determination of the compensation and rehabilitation and
resettlement to cases of land acquisition under the enactments specified in the
Fourth Schedule to the RFCTLARR Act, 2013. The Electricity Act is one of the
thirteen nos. of enactments specified in the Fourth Schedule to the RFCTLARR
Act, 2013. When last of such ordinances lapsed on 31.08.2015, the Central
Government considered it necessary to extend the benefits available to the land
owners under the RFCTLARR Act, 2013 to similarly placed land owners whose
lands are acquired under the thirteen nos. of enactments specified in the Fourth
Schedule to the RFCTLARR Act, 2013. It is in the said backdrop, the RFCTLARR
[Removal of Difficulties] Order, 2015 has been made by the Central
Government. Accordingly, it has been laid down that the provisions of the
RFCTLARR Act, 2013, relating to the determination of compensation in
accordance with the First Schedule, rehabilitation and resettlement in
accordance with the Second Schedule and infrastructure amenities in
accordance with the Third Schedule shall apply to all cases of land acquisition
under the enactments specified in the Fourth Schedule to the RFCTLARR Act,
2013.
25. It is settled that once a piece of land is acquired under the RFCTLARR Act, 2013
by following the mandatory requirements, the land vests in the Government
free from all encumbrances. The process of acquisition includes taking over of
possession of the piece of land. Once the process of acquisition is complete the
owner of the land losses his right, title and interest to the Government. Unlike
the acquisition of land under the provisions of the RFCTLARR Act, 2013 what is
acquired under the provisions of the Telegraph Act r/w the Electricity Act is the
right of user. The land owner is within his rights to use the land for the same
purpose for which the land was being used earlier. The land owner retains the
ownership of the land and also the right to occupy and possess the land. There
could, however, be some restrictions due to obtaining the right of user on
behalf of the Transmission Licensee / Utility. It can be envisaged that after
installation of an electricity transmission line over a piece of land and/or
erection of a tower on a piece of land there would be certain curtailment for the
land owner to enjoy the land and to reap full benefits from the land.
26. There could be situations and circumstances when the Appropriate Government
and/or a Transmission Utility in order to install a transmission line, electrical
plant, etc. or to set up an office at a particular place for efficient distribution of
electricity, etc. need a piece of land permanently. In such situations or
circumstances, if the Appropriate Government and/or the Transmission Utility
acquires any piece of land then it would be the provisions of the RFCTLARR Act,
2013 along with the RFCTLARR [Removal of Difficulties] Order, 2015 which
would then be applicable.
27. In the case in hand, only the right to user has been acquired in respect of the
subject-land in question, for installing the Transmission Line. What is taken over
is only the right of user to install the electricity Transmission Line over the
petitioner's subject-land and there is no acquisition of the subject-land or any of
the subject-land. This Court cannot, therefore, subscribe to the submission that
in the case in hand, a process of land acquisition is involved as it is the
acquisition of only the Right of User [RoW] by the PGCIL as a transmission
utility.
28. It is averred by the respondent PGCIL authorities in the Affidavit-in-Opposition
that it had followed the Guidelines / Methodology notified by the Circular dated
15.10.2015 of the Ministry of Power, Government of India and adopted by
Power [Electricity] Department, Government of Assam in calculating the
diminution value of the subject-land for installing the 400 KV D/C as Rs.
1,51,441.50 based on the zonal rate circulated by the Office of the Deputy
Commissioner, Lakhimpur.
29. In the notice served upon the petitioner on 16.04.2022, the details of the
calculation how the figure for compensation amount of Rs. 1,51,441.50 has
been arrived at, have been mentioned. It has been mentioned that the Corridor
Area to be affected for 46 metres width for Right of Way [RoW] would be
1.4423 Bigha. The zonal rate per Bigha has been mentioned as Rs. 7,00,000/-.
The land value has, thus, been arrived at Rs. 1,51,441.50. The manner in which
the compensation amount of Rs. 1,51,441.50 has been arrived at is also
indicated in a Table in the following manner :-
B. For RoW Corridor Area : Affected area is as follows :-
Corridor Area Area in Bigha Rate per Bigha Amount of
Length [M] Breadth [M] Area [Sq.m.] [Area in as per Order compensation
Sq.m./1318] dtd. [15% of land
value]
30.6 54.6 1670.76 1.4423 Rs. 7,00,000/- Rs. 1,51,441.50
15.5 15.7 259.05
30. The learned counsel for the petitioner, in the course of his submissions, has
submitted that the zonal valuation rate / market rate applied by the respondent
authorities was not the correct one and in view of the strategic location of the
subject-land, the zonal valuation rate / market rate of the subject-land was
much higher. He has further submitted that in view the installation of the
Transmission Line over the subject-land, the entire area of land, measuring 1
Bigha 2 Katha 17 Lessas have become unusable. The contention that the entire
area of the subject-land, measuring 1 Bigha 2 Katha 17 Lessas, has become
unusable, has been strongly refuted by the learned Senior Counsel for the
respondent PGCIL authorities by submitting that as per the survey carried out
on 14.08.2023, a substantial part within the subject-land, measuring 393.12
square meters, is still available for new construction and the respondent PGCIL
authorities have identified the said area after leaving aside 46 metres, that is,
23 metres on either side from the center line of the Transmission Line. The
availability of such available area been depicted pictorially in the joint survey
report in the following manner :-
31. To sum up, the contention of the petitioner is that in view of installation of the
Transmission Line the entire area of the subject-land, measuring 1 Bigha 2
Katha 17 Lessas, has become unusable for any purpose and on the other hand,
the contention of the respondent PGCIL authorities that despite installation of
Transmission Line over the subject-land, an area of land, measuring 393.12
square metres, are still available for new construction. Such contentions and
counter contentions would give rise to a disputed questions of fact, which can
only be adjudicated in a proceeding, on the basis of evidence led by the parties
and such disputed questions cannot be determined in a writ petition, which is
ordinarily, decided on the basis of affidavits.
32. In this connection, the following observations made by Hon'ble Supreme Court
of India in Kerala State Electricity Board vs. Livisha and others, reported in
[2007] 6 SCC 792, are of relevance and import :-
10. The situs of the land, the distance between the high voltage electricity
line laid thereover, the extent of the line thereon as also the fact as to
whether the high voltage line passes over a small tract of land or through
the middle of the land and other similar relevant factors in our opinion would
be determinative. The value of the land would also be a relevant factor. The
owner of the land furthermore, in a given situation may lose his substantive
right to use the property for the purpose for which the same was meant to be
used.
33. The above observations are also reiterated in Kerala State Electricity Board vs.
C.P. Sivasankara Menon, reported in [2008] 11 SCC 382.
34. Sub-section [3] of Section 16 of the Telegraph Act has provided in specific
terms that if any dispute arises concerning the sufficiency of the compensation
to be paid under Section 10, clause [d], the aggrieved party is required to file
an application in that respect before the District Judge within whose jurisdiction
the property is situated and in the event of preferring such an application, the
jurisdictional District Judge can determine the sufficiency or otherwise of the
compensation already assessed and in an appropriate case, can also enhance
the amount of compensation. Thus, the petitioner if he is aggrieved by the
compensation amount assessed at Rs. 1,51,441.50, he has the liberty to seek
remedy raising the point of insufficiency under the provisions of sub-section [3]
of Section 16 of the Telegraph Act. Otherwise, the petitioner is permitted to
inform the respondent PGCIL authorities to disburse the amount forthwith, if
the amount of Rs. 1,51,441.50 has not been received by him till date, and in
the event of receipt of such an intimation or otherwise also, the respondent
PGCIL authorities shall immediately disburse the amount to the petitioner.
35. In the Order dated 19.10.2021 passed by the Deputy Commissioner, Lakhimpur
on which the petitioner has placed heavy reliance, a resolution adopted by the
Sub-Divisional Land Advisory Committee [SDLAC] has been referred to. It was
resolved by the SDLAC that the compensation amount of acquiring right of user
should be done in a manner to match the compensation amount receivable
under the RFCTLARR Act, 2013. Based on the said resolution, the Deputy
Commissioner, Lakhimpur had issued the Order dated 19.10.2021 directing all
the concerned Revenue authorities to consider the parameters for fixation of
land values in respect of infrastructure projects like laying of transmission lines
by Central Public Sector Undertakings [CPSUs] like the PGCIL, etc. The Office
Letter dated 17.08.2022 of the Deputy Commissioner, Lakhimpur was based on
the Order dated 19.10.2021. The Deputy Commissioner, Lakhimpur after
assessing compensation amount for the subject-land, as per the provisions of
the RFCTLARR Act, 2013, at Rs. 44,92,800/- requested the PGCIL authorities to
pay the said amount to the petitioner.
36. The Deputy Commissioner, Lakhimpur [the respondent no. 6] has himself made
a volte face in the affidavit-in-opposition by stating that the Deputy
Commissioner cannot retain jurisdiction after making assessment on the basis
of the Telegraph Act and the Guidelines / Methodology laid down in the Circular
dated 15.10.2015 of the Ministry of Power, Government of India and the
Notification dated 10.03.2017 of the Power [Electricity] Department,
Government of Assam. The respondent no. 6 has clarified that the Office Letter
dated 17.08.2022 was written to the respondent PGCIL authorities in response
to a petition dated 18.04.2022 filed by the petitioner for assessing the market
value of the subject-land.
37. In view of the facts that there is no land acquisition qua the subject-land and
by the provisions contained in Section 105 read with RFCTLARR [Removal of
Difficulties] Order, 2015, the provisions of the RFCTLARR Act, 2013 are made
applicable to the Electricity Act only in case of acquisition of land, there is
fundament flaw in the reasoning assigned by the Deputy Commissioner,
Lakhimpur in the Officer Letter dated 17.08.2022. This Court is, therefore, not
persuaded to subscribe to the submission made by the learned counsel for the
petitioner that a direction is called for to the respondent PGCIL authorities to
pay the sum of Rs. 44,92,800/- as against the acquisition of the subject-land.
An authority like the Deputy Commissioner cannot assume any power, authority
and jurisdiction to make a decision to apply the provisions of the RFCTLARR
Act, 2013 suo moto in a matter where no acquisition of land is involved and as
such, the prayer made in this writ petition is not found unsustainable in law. In
such view of the matter, the contention made on behalf of the petitioner to
provide the petitioner compensation in terms of the provisions of RFCTLARR
Act, 2013 is found not merited.
38. In view of the discussions made above and for the reasons assigned herein, the
relief sought for by the petitioner in this writ petition cannot be allowed. The
writ petition is, thus, found devoid of any merit and the same is liable to be
dismissed. It is accordingly dismissed. There shall, however, be no order as to
cost.
JUDGE
Comparing Assistant
