Bhupatbhai Devjibhai Madaliya vs State Of Gujarat
2021 Latest Caselaw 1430 Guj

        C/SCA/20372/2019                                 ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 20372 of 2019
                              With
         CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
         In R/SPECIAL CIVIL APPLICATION NO. 20372 of 2019
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                    BHUPATBHAI DEVJIBHAI MADALIYA
                                Versus
                         STATE OF GUJARAT
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Appearance:
MR MB PARIKH(576) for the Petitioner(s) No. 1-38
MR SP HASURKAR(345) for the Respondent(s) No. 2,3
MR HARDIK D MEHTA, AGP for the Respondent(s) No. 1,4
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                    Date : 01/02/2021
                     ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioners have prayed for the following reliefs:

"(A) Your Lordships be pleased to issue a writ of mandamus and or any other appropriate writ order or direction quashing and setting aside the action for laying 400kv electricity line and erection of 220kv tower passes through the fields of the petitioners (as per char Annexure E) and be please to declare the said action of the present respondent no.2 and 3 as illegal, arbitrary, without application of mind and further Your Lordships be please to direct them to laying 400kv electricity line and erection of 200kv tower in the open Government vest land situated paralleled to the fertile agricultural filed of the petitioners and by doing so huge public money can be saved that can be paid to the petitioners towards compensation due to loss and damages to the fertile agricultural fields;

C/SCA/20372/2019 ORDER

(B) Pending admission, hearing and till final disposal of this petition, Your Lordships be please to direct the respondent authorities to restrain from laying 400kv electricity line and erection of 200kv tower passes through the fields of the petitioners (as per char Annexure E);

(C) Be please to grant such other and further relief/s which may be deems fit in the interest of justice;"

2. It is mainly stated in the petition that on 03.10.2019, respondent No.2 has issued notice to the petitioners informing about installation of 400kv electricity line and erection of 220kv D/C tower into their fields. The petitioners are requested to co­ operate with the respondents and it was informed that appropriate compensation will be paid. After receipt of the said notice, the respondents submitted their objection on 14.10.2019 wherein it was mainly stated that due to laying of 400kv electricity line and 220kv D/C tower in the agricultural fields of the petitioners, they would suffer huge loss. It was pointed out to the respondents that the Government waste land situated parallel to the fields of the petitioners is available wherein the respondents can lay the aforesaid lines so that the agricultural fields of the petitioners can be saved. It is also stated that the President of the Gram Panchayat, Ingorala, has also requested to the respondents vide communication dated 12.10.2019 about the aforesaid aspects. The petitioners have, therefore, filed the present petition for the reliefs as prayed for in the

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petition.

3. Learned advocate Mr.M.B. Parikh has referred the documentary evidence placed on record including the objections raised by the petitioners, notification issued by the respondents as well as the map, a copy of which is placed on record at Pages­58 and 59 of the compilation. After referring to the same, learned advocate Mr.Parikh would contend that though the alternate Government waste land is available, the respondents are insisting for erecting of the electricity poles and the electricity lines from the agricultural fields of the petitioners. Therefore, this Court may restrain the respondents from laying down the electricity line and the tower in the agricultural fields of the petitioners as prayed for.

3.1 Learned advocate for the petitioners has also referred the order dated 17.02.2020 passed by respondent No.4, a copy of which is placed on record at Pgae­101 of the compilation whereby the permission is granted to the respondents to lay down the aforesaid lines. It is further submitted that the said order is subsequently corrected vide order dated 06.03.2020, a copy of which is placed on record at Page­99 of the compilation. Learned advocate Mr. Parikh has tried to contend that the aforesaid order passed by the District Magistrate is bad and illegal and, therefore, it is to be set aside. It is further submitted that prior to passing of the said order, a communication was sent by respondent No.4 to District

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Inspector of Land Records (DILR) to prepare a report and accordingly, the report was prepared on 22.01.2020, copies of which are placed on record at Pages­92 and 93 respectively.

3.2 Learned advocate Mr. Parikh, after taking instructions from the petitioners, fairly submitted that in fact, the petitioners have challenged the order dated 17.02.2020 passed by respondent No.4, District Magistrate and the corrected order dated 06.03.2020 by filing an appeal under Section 16(3) of the Indian Telegraph Act, 1885, before the Principal District and Sessions Judge, Amreli. When inquired, learned advocate for the petitioners further submitted that the said appeal is still pending. However, this Court may consider the submissions of the petitioner on merits and, thereafter, quash and set aside the order passed by the District Magistrate.

4. On the other hand, learned advocate Mr.S.P. Hasurkar appearing for the respondent Nos.2 and 3 has referred the affidavit­in­reply filed by the concerned respondent at Page­60 as well as further affidavit­in­reply placed on record at Pgae­94. It is submitted that in fact, the petitioners have not placed on record the aforesaid orders and on the contrary, the respondents by way of the aforesaid affidavits placed on record the order dated 17.02.2020 passed by respondent No.4, District Magistrate and the corrected order dated 06.03.2020.

             C/SCA/20372/2019                                                 ORDER



It     is      submitted            that      the        petitioners           have        not
challenged           the        said    orders           before      this       Court        by
filing any amendment application.

4.1 It is further submitted that even the appeal filed by the petitioners is not maintainable before the District Court as the District Magistrate has no power to go into the aspect of alternate route as held by the Division Bench of this Court in the judgment dated 06.11.2020 passed in Letters Patent Appeal No.534 of 2020 and allied matters. It is submitted that the Special Leave Petition filed against the said judgment has been dismissed by the Honourable Supreme Court recently on 08.01.2021. Copies of the said orders are placed on record.

5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the petitioners have only prayed in the present petition that the action of the respondents of laying 400kv electricity line and erection of 220kv D/C tower passing through the agricultural fields of the petitioners be quashed and set aside and the said action be declared as illegal, arbitrary and without application of the mind and the respondents be directed to lay down 400kv electricity line and erection of 220kv D/C tower on the Government waste land situated parallel to the fertile agricultural fields of the petitioners. It is pertinent to note at this stage that after filing of the present petition in the year 2019, respondent

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No.4 District Magistrate has already passed an order on 17.02.2020 and the said order is thereafter corrected vide order dated 06.03.2020. In the said order, respondent No.4 District Magistrate has considered the objection raised by the petitioners and, thereafter, given finding that alternate route is not feasible. It is also pertinent to note at this stage that the petitioners have not challenged the aforesaid orders in the present petition by way of amendment. On the contrary, the petitioners have filed an appeal under Section 16(3) of the Act before the District Court, wherein the same contentions are raised. The said appeal is still pending. Thus, when the petitioners have challenged the orders passed by respondent No.4 District Magistrate before the District Court, the petitioners are not entitled to claim reliefs as prayed for in the present petition, as the said issue is already pending before the concerned District Court. Learned advocate Mr. Hasurkar has contended that though the District Magistrate could not have gone into the aspect of alternate route, he has considered the same and given findings in favour of the respondents and, therefore, the appeal filed by the present petitioners is not maintainable. However, the said issue is not before this Court whether the appeal is maintainable or not. It is for the respondents to contend this point before the concerned Court as and when the appeal is taken up for hearing.

6. From the aforesaid facts and circumstances of

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the present case, it is clear that the objection taken by the petitioners before respondent No.4 District Magistrate with regard to the alternate route is already considered by the said authority. The said authority has also given finding that it is no feasible. The order of respondent No.4 District Magistrate is challenged by the petitioners by filing an appeal before the District Court. Thus, when the same issue is pending before the concerned Court, it is not open for the petitioners to request for the same reliefs in the present petition. However, it is clarified that it is open for the parties to take all the contentions before the concerned District Court in the appeal filed by the petitioners including the issue with regard to the maintainability of the appeal.

7. Thus, in the facts of the present case, I am not inclined to entertain the present petition. Accordingly, the same is rejected. Notice is discharged. Connected Civil Application stands disposed of, accordingly.

(VIPUL M. PANCHOLI, J) piyush