Rafikbhai Abhrambhai Modan vs State Of Gujarat
2021 Latest Caselaw 18709 Guj

     C/LPA/823/2021                                ORDER DATED: 23/12/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 823 of 2021
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 3904 of 2021
==========================================================
                      RAFIKBHAI ABHRAMBHAI MODAN
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
JAIMIN A GANDHI(8065) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,6,7,8,9
MR TIRTHRAJ PANDYA, ASSTT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 2
==========================================================
 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                            Date : 23/12/2021

                              ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This intra- court appeal is directed against the order dated 2.9.2021 passed in Special Civil Application No.3904 of 2021, under which application, the appellants herein had opposed the construction and erection of 765 KV Transmission Line from KV Lakadia (Bhuj) to Waghodia (Vadodara, having total length of 350 Kms. starting from Lakadia (Bhuj) to Waghodia (Vadodara) contending inter alia that they are owners and occupiers of the lands situated in village Simej and Roopgadh, Taluka Dholka, District Ahmedabad and drawing of the said transmission line would result in value of their land diminishing and they would not be able to put their land for beneficial use.

2. Sum and substance of the contentions raised before the learned Single Judge in Special Civil Application and reiterated before this Court in the present appeal is to the effect that alleged transmission

C/LPA/823/2021 ORDER DATED: 23/12/2021

line, which is being laid by respondent No.2, is not properly aligned or in other words the alignment is not a straight line as required in laying down of such lines and the proposed alignment is to favour certain industrialists and other persons, as referred to in the petition, on account of which, the petitioners/ appellants are gravely prejudiced. In fact, petitioners, had challenged the notice dated 7.1.2021 issued by the second respondent, informing the recipients, namely petitioners, about the laying down of transmission line and tower for such transmission line being required to be erected in the land of the petitioners and further informing them that land is not being acquired and they would be able to cultivate the said land below the transmission line. The petitioners have also been informed of the compensation that would be paid to them for laying the transmission line, which may result in causing damage to the existing standing crops and have intimated the petitioners to approach the jurisdictional District Judge for enhancement of compensation, if not being satisfied with the quantum of compensation that would be awarded.

3. The respondents on being notified, they have appeared before the learned Single Judge, filed their statement of reply and denied the averments made in the petition, except to the extent expressly admitted thereunder.

4. We have heard Shri Jaimin A. Gandhi, learned counsel appearing for the appellants and learned Assistant Government Pleader Mr. Tirthraj Pandya for respondent No.1, who is on advance notice, and Shri S.P. Hasurkar, learned counsel appearing for respondent No.2. Perused the papers.

5. As already noticed herein-above, the second respondent has proposed to lay a transmission line and for the said purpose, it is engaged in construction and erection of 765 KV transmission line of total length of 350 KV starting from Lakadia (Bhuj) to Waghodia

C/LPA/823/2021 ORDER DATED: 23/12/2021

(Vadodara). The manner in which the transmission line is being laid is succinctly explained by the respondent No.2 in its counter affidavit, which has been filed before the learned Single Judge, who has taken note of these facts and has dismissed the petition. Hence, appellants are before this Court.

6. It is the contention of Mr. Jaimin Gandhi, learned counsel appearing for the petitioners that transmission line which has been drawn or is proposed to be drawn takes a deviation at point 471, to an extent of 14 degrees and thereby said transmission line passes through the petitioners' lands and thereby diminishing the utility of the land of the petitioners or the value of the land. Elaborating his submissions, he would submit that there was no need or necessity for any deviation, much less 14 degrees deviation, and this exercise has been undertaken exclusively to favour some of the industries and as such, the acts of the second respondent is tainted with legal malice. He would also contend that reports appended to the petition would disclose that there was no necessity for any deviation of the transmission line and by virtue of such deviation, there is an intrusion of transmission line into the lands of the petitioners and as such, the said deviation is to be held as illegal and tainted with legal malafide and prays for suitable writ of mandamus being issued to the respondents to relocate the transmission line.

7. Per contra, Mr. S.P. Hasurkar, learned counsel appearing for the second respondent by reiterating the reply filed before the learned Single Judge and supporting the order passed by the learned Single Judge would pray for dismissal of the petition. He would also contend that even in the original project envisaged, there was no deviation propounded and what has been done is in accordance with the extant policy of drawing the transmission line and as such, the learned Single Judge has rightly taken note of these facts and has dismissed the petition. Hence, he prays for rejection of the appeal.

C/LPA/823/2021 ORDER DATED: 23/12/2021

8. Having heard the learned advocates appearing for the parties and on perusal of the case papers in general and the impugned order in particular, it would be apt and necessary to note at the initial juncture itself that Courts exercising the power of judicial review of an Administrative Act would not sit as a Court of appeal to correct the administrative errors, even if any. In the matters of drawing of transmission lines, electrical lines, telegraphic lines are in the domain of experts. The Courts exercising extraordinary jurisdiction under Article 226 would not conduct a roving inquiry to ascertain as to whether the experts were justified in arriving at a conclusion either way. The Courts would not sit in the armchair of experts to examine the technical issues which would have gone into by the experts. Only if there is flaw in the decision making process as held by the Apex Court in the case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651, power of judicial review would be exercised and the decision arrived at would not be gone into. This Court exercising the jurisdiction under Article 226 would not examine the decision of the experts. However, if the decision making process is flawed, same would come for judicial scrutiny or review. Keeping these salutary principles in mind, when we turn our attention to the facts on hand by bestowing our careful and anxious consideration, raised by the learned advocates appearing of the parties, we notice that a public notice was issued before undertaking of laying of the transmission line which is subject matter of this appeal by calling for objections/ representation, as regards the route of the proposed transmission line, before authorization, as contemplated under Section 164 of the Electricity Act. In fact, the names of the villagers to which the petitioners belong had also been mentioned in the said public notice. Said notice also clearly indicated that proposed route map which was available with the signatory for the public to view. Undisputedtly, petitioners did not submit any submission/ representation to the proposed route of transmission line, whereas only transmission line or towers were sought to be erected which would pass through the

C/LPA/823/2021 ORDER DATED: 23/12/2021

agricultural fields of the petitioners, present challenge was laid. In the affidavit of the second respondent filed before the learned Single Judge as to how the route of the transmission line is designed has been explained in para 4(d) and it was contended as under:-

"In view of the above, x x x statement of allegation. In the present case line passing in straight direction from village Roopgadh, so far as village Simej is concerned it is taking turn 14.42 degree. It is required to be noted that having taken that turn like is passing in straight direction. It may be noted also that said turn was necessary for avoiding habitat area of village Simej. Petitioner's case that line can be taken from S.no.821 and 823 is not possible since these survey numbers are falling on the North of the line and are not falling in alignment. It is stated there here in the present case petitioner has not undertaken any exercise to ascertain factual details and made bald statement."

It is also further stated by second respondent in the reply affidavit dated 7.8.2021 at paragraph 5 to the following effect:-

"All other contentions x x x There is no change or deviation in the route as from originally designed so far as of the petitioner's land is concerned. When route is designed it is designed objectively on the basis of settled parameters as stated in the reply and designing agency had no knowledge of facts regarding individual owner ship of the land. The Surveyors x x x in the reply."

9. In the background of the said stand taken by the second respondent, the owners/ occupiers of the land would have no choice about what should be the route of the transmission line and where it should be placed, since such a decision must always yield to the opinion of technical experts, technical experts would have examined the mode, manner and method in which the transmission line is to be drawn by taking into consideration the viability aspect also. In a given situation, where for the public cause, a transmission line is drawn and in the process, several towers are erected over the private lands in the ownership of individuals are allowed to have a say and object

C/LPA/823/2021 ORDER DATED: 23/12/2021

either to the route or to the alignment, in such circumstances, no transmission line can be laid or erected. In other words, the individual grievances even if any, in public projects, will have to necessarily kneel before the public cause. At this juncture itself, we have looked into the alignment map which was also perused by the learned Single Judge, to examine the contention of appellants to find out whether conclusion arrived at for deviation of 14.42 decrees which has been taken at location No.471 was for the public good and find the answer in the affirmative. We say so, for the simple reason if any other alignments are to be adopted, it would have definitely affected the habitats of the two villages and as such, the contention raised by the petitioners' counsel before the learned Single Judge and reiterated before this Court cannot be accepted. The learned Single Judge has taken note of the judgment of the Coordinate Bench rendered in the case of Gujarat State Electricity Transmission Line Corporation Ltd.

Vs. Ratilal Maganji Brahmbhatt (Barot) in Letters Patent Appeal No.534 of 2020, rendered on 6.11.2020, also to negative the contention of petitioners. Hence, we are of the considered view that petitioners have no vested right to seek either shifting of the alignment or shifting of the route inasmuch as technical feasibility report of the project having been approved by the Government by issuing appropriate authorization in exercise of the powers vested under Section 164 of the Electricity Act, 2003, in no circumstance, can be held to have been acted in a malafide manner. As such, contention raised by Mr. Jaimin Gandhi, learned counsel appearing for the appellants requires to be considered for the purposes of out-right rejection and accordingly, we reject the said contention.

10. It would also be necessary to notice that appellants- petitioners have consistently contended and canvassed before the learned Single Judge and reiterated before this Court that for the purposes of favouring M/s. Shakti Polyviv Pvt. Ltd. and M/s. Royal Goa City Resorts, the alignment has been changed. Without even arraigning

C/LPA/823/2021 ORDER DATED: 23/12/2021

them as respondents, such contention has been raised. Though a legal malice is sought to be projected against officials of respondent No.2, necessarily, plea is raised against the above said two (2) companies whom petitioners allege are being favoured by the officials of the second respondent, and when they are not parties to the present proceedings, entertainment of plea of legal malafides cannot be entertained.

11. Though we have arrived at a conclusion to dismiss the appeal and affirm the order of the learned Single Judge, we are also perforced to observe that in the instant case, a mammoth project of this nature of laying transmission for about 350 kilometers namely construction and erection of 765 KV Lakadia- Vadodara transmission line commencing from Lakadia (Bhuj) to Waghodia (Vadodara) which was commenced had come to a standstill on account of status-quo order which was granted, which was in force or in vogue commencing from February 2021 till dismissal of the petition on 2.9.2021. Necessarily, such mammoth projects if stalled or not proceeded within the time schedule, would result in escalation of costs and thereby burdening the exchequer and consequentially, the citizens are being made to pay. As such, we are of the considered view that petitioners are required to be mulcted with costs. The principle of costs should follow the cause is squarely applicable to the facts on hand. Though Mr. Jaimin Gandhi, learned counsel, appearing for the appellants would vehemently contend that order of status quo granted by Learned Single Judge was affirmed by the Coordinate Bench in Letters Patent Appeal No.436 of 2021, vide order dated 14.6.2021, the fact remained that project had been stalled or stood in suspended animation for more than 7 months, and thereby resulting in cost escalation. As such, we are of the considered view that petitioners should be liable to pay costs. Though in the normal circumstance, this Court would have mulcted with them with exemplary costs, we refrain from doing so keeping in mind that petitioners are small time farmers and a nominal

C/LPA/823/2021 ORDER DATED: 23/12/2021

cost of Rs.2,000/- (Rupees Two Thousand) payable by each of them to the second respondent if imposed, it would suffice. Hence, we proceed to pass the following order:-

ORDER

(1) Letters Patent Appeal stands DISMISSED with costs.

(2) Oral Judgment passed in Special Civil Application No.3904 of 2021 dated 2.9.2021 is affirmed.

(3) Each of the petitioners who are prosecuting this appeal shall pay Rs.2,000/- (Rupees Two Thousand only) as costs to the second respondent within an outer limit of FOUR WEEKS from today, failing which second respondent would be at liberty to recover the same from the petitioners/appellants through the District Collector, who shall on filing of an affidavit of non-payment of costs by the competent officer of the second respondent, shall initiate proceedings against the petitioners/ appellants for recovering the costs as arrears of land revenue.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) OMKAR