Gujarat High Court
Shobhnaba Viraji Lalji Sodha vs District Collector And District ... on 31 August, 2021
Bench: Nikhil S. Kariel
C/SCA/13249/2020 ORDER DATED: 31/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13249 of 2020
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1
of 2021
In R/SPECIAL CIVIL APPLICATION NO. 13249 of 2020
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SHOBHNABA VIRAJI LALJI SODHA
Versus
DISTRICT COLLECTOR AND DISTRICT MAGISTRATE
============================================
Appearance:
DARSHAN M VARANDANI(7357) for the Petitioner(s) No. 1,2
MR ISHAN JOSHI AGP (1) for the Respondent(s) No. 1
MR GAURAV S MATHUR(5365) for the Respondent(s) No. 2
SINGHI & CO(2725) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 31/08/2021
ORAL ORDER
1. Heard learned Advocate Shri Darshan M. Varandani for the
petitioners, learned Advocate Shri Gaurav Mathur for the respondent No.2
and learned AGP Shri Ishan Joshi for the respondent No.1.
2. This petition has come up for hearing along with the Civil
Application for vacating the interim relief. Having regard to the subject
matter and dispute herein, this Court has deemed it expedient with the
consent of the parties to take up main writ petition for hearing.
3. Learned Advocate Shri Darshan Varandani draws attention of this
Court to the Rules being the Works of Licensees Rules, 2006, more
particularly Sub-Rule 3(1)(a) thereof and submits that under the said Rules,
C/SCA/13249/2020 ORDER DATED: 31/08/2021
before laying down of an electric supply line or other works, prior consent
of the owner and occupier of any building or land is required. Learned
Advocate further draws the attention of this Court to an order passed by the
Central Electricity Authority dated 27.01.2021 issuing authorization under
Section 164 of the Electricity Act, 2003 for laying of electric line under the
transmission scheme "Connectivity to M/s. Adani Green Energy Limited
for its proposed 300 MW wind farms in Bhuj, Gujarat." and submits that
such authorization has been granted subject to certain conditions and
whereas learned Advocate relies upon condition (vi) of the said
authorization which reads as under:
"the approval is subject to the compliance of the requirement of the
provisions of the Electricity Act, 2003 and the Rules made thereunder
by the applicant"
4. Learned Advocate Shri Varandani has sought to contend that the
authorization under Section 164 required the respondent No.2 to follow the
provisions and Rules made under the Electricity Act, 2003 and whereas
since Rules referred to hereinabove framed under Clause E of Sub-section 2
of Section 176 read with Sub-Section 2 of Section 67 of the Electricity Act,
2003, therefore, it was incumbent upon the respondent inspite of having
authorization under Section 164 of the Electricity Act to have taken prior
consent of the land owners i.e. the present petitioner before entering into
the land of the petitioner to construct tower for laying down electricity
transmission lines. Learned Advocate further submits that this Court may
confirm the interim relief till final disposal of the present petition.
5. As against the same, learned Advocate Shri Mathur for the
respondent No.2 has drawn the attention of this Court to the judgment of
the Division Bench of this Court dated 06.11.2020 in Letters Patent Appeal
No.534 of 2020 in case of Gujarat State Energy Transmission Corporation
C/SCA/13249/2020 ORDER DATED: 31/08/2021
Ltd. Vs. Ratilal Maganji Brahmbhatt (Barot), more particularly, Clause 58.13,
58.14, 58.16 which reads as under:
"58.13 Having taken into consideration the relevant provisions of
the Indian Telegraph Act, 1885 and Electricity Act, 2003 and
analysis of Section 67 and section 164 of the Electricity Act, 2003,
the legal position is that, whenever an order is passed by the
appropriate Government, in exercise of powers under Section 164
of the Electricity Act, 2003, for placing of electric lines for the
transmission of electricity, conferring upon any public officer,
licensee or any other person engaged in the business of supplying
electricity any of the powers which the telegraph authority possesses
under the Indian Telegraph Act, 1885, with respect to the placing of
telegraphic lines and posts for the purposes of a telegraph
established by the Government, such public officer, licensee or any
other person engaged in the business of supplying electricity,
exercises all the powers, as that of the telegraph authority, under the
Indian Telegraph act, 1885.
58.14 However, in the absence of such an order under Section
164 of the Electricity act, 2003, if a licensee i.e., a person who has
been granted a licence to transmit electricity or to distribute
electricity under the Act, proposes to place electric lines, electric
plant or other works necessary for transmission or supply of
electricity, Section 67 of the Electricity Act, 2003 comes into
operation and consequently, prior consent of the concerned owner
or occupier, may be required, under Section 12 (2) of the Indian
Electricity Act, 1910.
58.16 Section 16 states that if there is any resistance or
obstruction, the District Magistrate may in his discretion, order that
the telegraph authority shall be permitted to exercise all the powers.
C/SCA/13249/2020 ORDER DATED: 31/08/2021
Further, after such an order, a person offering any further resistance
is deemed to have committed offence under Section 188 of the
Indian Penal Code. Once the technical feasibility of the project, has
been approved by the appropriate Government, by issuing an order
under Section 164 of the Electricity Act, 2003, no land owner or
person interested can seek for shifting or re-aligning of the route, on
the premise that the District Collector-cum-District Magistrate, has
the powers to do so. The District Collector has no powers to alter
any route or alignment, except to remove the difficulties faced by
the licencee or the person authorised, pursuant to the orders issued
under Section 164 of the Act."
6. Learned Advocate based upon the said conclusion has submitted that
the Division Bench of this Court has clearly laid down that a licensee is
required to follow the provisions of the Works of Licensees Rules, 2006
made under Section 67(2) of the Electricity Act, 2003 till such time the
licensee is granted an authorization under Section 164 of the Electricity Act,
2003 and whereas once such an authorization is granted then no consent or
prior permission of an owner or occupier of the land is required before
entered into land for placing transmission line. Learned Advocate submits
that the petition has been preferred at a stage when the respondent No.2
had been granted authorization under Section 164 of the Electricity Act and
whereas the allegation at the relevant point of time was that though the
respondent No.2 was exercising authority under the Works of Licensees
Rules, 2006 yet as envisaged under the Rules, the respondent No.2 had not
take prior permission of the petitioner before entering into the land of the
present petitioner. It is further submitted in this regard that at the relevant
point of time, the respondent No.2 had not entered into the land of the
present petitioner and it is further submitted that in any case, now the
respondent No.2 has been granted authorization by the Central Electricity
Authority under Section 164 of the Electricity Act, 2003, therefore, there is
C/SCA/13249/2020 ORDER DATED: 31/08/2021
no question of seeking prior permission or giving notice to the owner or
occupier of the land in question. It is therefore, submitted by learned
Advocate Shri Mathur that present petition is now covered by the decision
of the Division Bench and hence, nothing remains and therefore, present
petition may be dismissed.
7. In rejoinder, learned Advocate Shri Varandani has submitted that
since the authorization under Section 164 clearly requires that the condition
shall be followed and one of the condition being to follow the provision of
the Electricity Act and Rules made thereunder and since the Works of
Licensees Rules, 2006, are framed under the Electricity Act, therefore, it was
incumbent upon the respondent No.2 to have followed the said Rules and
take prior permission from the land owner i.e. the present petitioner.
8. Having regard to the submission made by the learned Advocates for
the parties, this Court is of the prima facie opinion that the issue involved in
this petition is squarely covered by the decision of the Division Bench of
this Court in the case of Ratilal (Supra) and whereas once authorization
under Section 164 of the Electricity Act, 2003 is granted by the competent
authority under the Electricity Act, 2003, there is no requirement upon the
licensee to take prior permission or consent from the land owner or the
occupier. Under such circumstances, the interim relief granted earlier cannot
be continued any more, at the same time, in view of the specific submission
made by learned Advocate Shri Varandani for the petitioner as regards
condition (vi) in the authorization under Section 164 of the Electricity Act
to the respondent No.2, this Court deems it appropriate to direct the
present petitioner to join the Central Electricity Authority as respondent
No.3 so that appropriate clarification can be obtained. The present petition
is therefore now restricted to this limited aspect of having clarification from
the Electricity Authority with regard to the condition (vi) of the
Authorization dated 27.01.2021 under Section 164 of the Electricity Act in
C/SCA/13249/2020 ORDER DATED: 31/08/2021
favour of the respondent No.2.
9. In view of the above discussion hereinabove, interim relief granted by
this Court vide order dated 27.10.2020 shall stands vacated forthwith.
Upon Central Electricity Authority being joined as party respondent
No.3, issue Rule to the said Authority returnable on 05.10.2021.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
