Gujarat High Court

Patel Vinubhai Vihabhai vs The Executive Engineer on 8 March, 2021

Bench: Vipul M. Pancholi

             C/SCA/1501/2021                                            ORDER



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO.                            1501 of 2021

=======================================================
                PATEL VINUBHAI VIHABHAI
                         Versus
          THE EXECUTIVE ENGINEER & 1 other(s)
=======================================================
Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
=======================================================

 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                               Date : 08/03/2021
                                     ORAL ORDER

1. This petition is filed under Article 226 of the

Constitution of India, in which, the petitioner

has prayed for following relies,

"(A) xxx xxx xxx.

(B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus and be pleased to direct the Respondent authorities to not to enter on the land of the Petitioner in the interest of justice until the respondent authority do not calculate and follow proper procedure as per the said Act and also grant adequate compensation under the Telegraph Act, 1885 to the present petitioner.

C/SCA/1501/2021 ORDER

implementation of the order dated 21.12.2020 passed by the respondent no.2 authority being District Magistrate, Mehsana during the pendency of this application in the interest of justice. (CA) Your Lordships be pleased to issue writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus for quashing and setting aside the orders of the respondent no.2 being The District Magistrate, Mehsana dated 21.12.2020 which was passed without considering the representations and the material on record of the petitioner.

(D) xxx xxx xxx."

2. Heard learned advocate, Mr. Tejash Satta for the

petitioner and learned advocate, Mr. S.P. Hasurkar

for the respondent no.1.

3. The facts of the case leading to the filing of the

present petition are as under,

3.1 The petitioner is the owner of the land

bearing Survey No.68 (Old Survey No.310) of

moje Taleti, Tal. & Dist.: Mehsana.

3.2 The respondents are in process of

establishing Village Taleti Double

electricity transmission line (132 K.V.

Mehsana - Siddhpur Line No.2 and 132 K.V.

Mehsana - Patan Line No.1 & 2) from the land

C/SCA/1501/2021 ORDER

of the petitioner despite the respondents

having alternate route available.

3.3 On 26.12.2019, the respondent no.1 had issued

notice for laying down the electricity line

on the agricultural land of the petitioner.

Thereafter, the petitioner and other

villagers have raised objections against

laying down of electricity line and,

therefore, the respondent no.1 filed

proceeding before the respondent no.2 -

District Magistrate and the respondent no.2 -

District Magistrate issued notice on

09.10.2020 to the petitioner and other

objectors. On receipt of the notice issued by

the respondent no.2 - District Magistrate,

the the petitioner submitted reply dated

15.10.2020 and also requested to supply

necessary documents, however, the respondent

no.2 - District Magistrate passed impugned

order on 21.12.2020, whereby the objections

raised by the petitioner and other objectors

have been rejected and permission was given

to the respondent no.1 to proceed further

with the work of laying down of electricity

C/SCA/1501/2021 ORDER

line. The petitioner has, therefore, filed

the present petition challenging the said

order.

4. Learned advocate, Mr. Tejas Satta appearing for

the petitioner has referred to Map, which is

placed on record at Page No.32 of the compilation

and after referring to the same, it is contended

that the respondent no.1 has erected the towers in

the land bearing Survey Nos.70 and 78, which is

near the land of the petitioner and thus, there is

no need for the respondent no.1 to erect the tower

in the land of the petitioner. Learned advocate

has also referred to the photographs, which are

placed on record in support of the said

contentions. It is further submitted that it was

specifically pointed out to the respondent no.2 -

District Magistrate that alternate Government land

is available with the respondent no.1 for the

purpose of laying down electricity line and for

erection of tower, inspite of that, the respondent

no.1 has tried to shift the tower from the

adjoining field to the land in question, which is

of the ownership of the petitioner. It is further

submitted that even the respondent no.1 has not

C/SCA/1501/2021 ORDER

paid any compensation to the petitioner till date

and, therefore, the action of the respondent no.1

is required to be quashed and set aside.

5. Learned advocate, Mr. Satta, at this stage, has

referred to and relied upon the provision

contained in Section 10(d) and Section 16 of the

Indian Telegraph Act, 1885 (hereinafter referred

to as "Telegraph Act" for short). It is submitted

that the Telegraph Authority shall do as little

damage as possible while exercising powers

conferred under the said provision and also to pay

full compensation to the persons interested for

any damage sustained by them by reason of the

exercise of those powers. At this stage, once

again it is submitted that while exercising power,

the respondent no.1 has not considered the

aforesaid provision and thereby they have decided

to shift the line from the land bearing Survey

Nos.70 and 78 to land bearing Survey No.68, which

is of the ownership of the petitioner.

6. Learned advocate, thereafter, placed reliance upon

the decision rendered by the Division Bench of

this Court in case of Dilip Singh Chauhan Vs.

Gujarat Urja Vikas Nigam Ltd., reported in 2013

C/SCA/1501/2021 ORDER

(34) GHJ 496, more particularly, has referred to

and relied upon Paragraph Nos.65(e), 65(f) and

65(g) of the said judgment. Learned advocate, Mr.

Tejas Satta has thereafter placed reliance upon

the the judgment of the Hon'ble Supreme Court in

case of Power Grid Corporation of India Ltd. Vs.

Centry Textiles and Industries Ltd. & Ors.,

reported in (2017) 5 SCC 143 and more

particularly, referred to Paragraphs Nos.23 and 26

thereof. Learned advocate, therefore, urged that

the impugned order passed by the respondent no.2

be quashed and set aside and the relief as prayed

for in the present petition be granted.

7. On the other hand, learned advocate, Mr. S.P.

Hasurkar appearing for the respondent no.1 has

opposed this petition and referred to separate map

placed on record. He has also referred to

affidavit in reply filed on behalf of the

respondent no.1. It is submitted that the

respondent no.1 is laying down transmission line

while exercising power by the Telegraph Authority

as envisaged in Sections 10 to 16 of the Telegraph

Act conferred upon them by the Government of

Gujarat under Section 164 of the Electricity Act.

C/SCA/1501/2021 ORDER

It is submitted that transmission line is laid

down after complying with all necessary

formalities and required permission. It is

submitted that the transmission line in question

is not new line but shifting of existing line due

to coming of new railway line. It is submitted

that the respondent - GETCO being State

Transmission Utility, it is its statutory duty to

maintain efficient and economic transmission

network throughout the State of Gujarat. It is

submitted that the Railways have applied for

shifting of the line and pursuant to the said

application, work in question is being carried

out. It is submitted that sufficient opportunity

of hearing was granted to the petitioner and other

adjoining land owners, who were obstructing the

process of laying of line in question and after

considering the reply of the petitioner, the

respondent no.2 - District Magistrate passed

impugned order. It is further submitted that the

proceeding before the respondent no.2 - District

Magistrate under Section 16(1) of the Telegraph

Act are of summary nature. It is also submitted

that the route of the line is decided and approved

C/SCA/1501/2021 ORDER

by the competent authority and various factors are

considered by the concerned Experts. It is further

submitted that the transmission line is required

to be changed because of the railway corridor. It

is submitted that the towers which were placed in

land bearing Survey Nos.70 and 78 are required to

be dismental because of such railway corridor and,

therefore, the line is to be shifted and tower is

to be installed in the land in question i.e. the

land bearing Survey No.68, which is of the

ownership of the petitioner. It is also submitted

that after taking Experts' opinion, the said

exercise is carried out and foundation work in the

land in question is already over. It is,

therefore, urged that this Court may not interfere

with the said process.

8. Learned advocate, Mr. Hasurkar has also contended

that the respondent no.1 has followed requirements

as mentioned in Section 10(d) of the Telegraph Act

and the compensation will be paid to the

petitioner by the respondent no.1 in three

different stages. At this stage, learned advocate

for the petitioner has placed reliance upon the

order dated 06.11.2020 passed by the Division

C/SCA/1501/2021 ORDER

Bench of this Court in Letters Patent Appeal

No.534/2020 and referred to Paragraph Nos.58.16 of

the said order. Learned advocate has therefore

urged that this petition may not be entertained.

9. Having heard learned advocates appearing for the

parties and having gone through material placed on

record, it would emerge that the respondent no.1

has issued show cause notice to the petitioner

before commencing work of laying down of

transmission line. It is true that the towers are

already installed in land bearing Survey Nos.70

and 78. However, it is the specific case of the

respondent no.1 that this is not the case of

installation of new transmission line but it is a

case of shifting of transmission line because of

the request made by the Railways. Thus, the

towers, which are already installed in the land

bearing Survey Nos.70 and 78, are required to be

dismental and after the opinion is received by the

Expert, the towers are required to be installed in

the agricultural field of the petitioner in land

bearing Survey No.68. From the separate map

supplied by learned advocate for the respondent

no.1, it is clear that transmission line is

C/SCA/1501/2021 ORDER

required to be shifted because of the railway

corridor, as a result of which, now it is decided

to install the tower in the field of the

petitioner.

10. It is pertinent to note that when the petitioner

and other persons of adjoining land have raised

the objections, proceedings were filed before the

respondent no.2 - District Magistrate under

Section 16 of the Telegraph Act. It is not in

dispute that the respondent no.2 has passed the

impugned order without giving opportunity of

hearing to the petitioner and other objectors. The

scope of proceeding under Section 16 of the

Telegraph Act is very limited. The respondent no.2

- District Magistrate has also observed in the

impugned order that the respondent no.1 is

required to pay compensation to the petitioner and

other objectors/ affected persons, which is also

specifically stated by learned advocate, Mr.

Hasurkar appearing for the respondent no.1 while

making submission that appropriate compensation

will be paid as per the prescribed procedure to

the petitioner. Thus, this Court is of the view

that no interference is required in the order

C/SCA/1501/2021 ORDER

passed by the respondent no.2 - District

Magistrate.

11. In case of Dilip Singh Chauhan (supra), the

Division Bench of this Court has observed and held

in Paragraph Nos.65(e), 65(f) and 65(g), which

read as under,

"(e) As per the Electricity Act any licensee in absence of any specific conferment of power under Section 164 of the Act as that of the Telegraph Authority for laying down of the work has to follow the procedure as provided under Section 67 read with the Rules of 2006. Such would include the consent of the owner or the occupier for laying down of the line and if the consent is not granted or the objection is raised, the licensee has to get the permission of the District Magistrate or the Commissioner of the Police or the officer so authorized, as the case may be, but while granting permission, the District Magistrate or the Commissioner of Police or the officer so authorized has to fix the amount of compensation or annual rent or both, which as per his opinion should be paid by the licensee to the owner or occupier. The order of the District Magistrate or the Commissioner of Police or the officer so authorized is subject to revisional power of appropriate Commission.

  C/SCA/1501/2021                                             ORDER




(f)     In     case       of     exercise             of    power        under

Telegraph Act on account of conferment of such power upon the licensee by appropriate Government under Section 164 of the Act, the power may be exercised by the licensee as Telegraph Authority for laying down of line. As per the provisions of Section 10(d) there is obligation upon the licensee to lay down the line, which causes the least damage and to pay appropriate compensation.

(g) While exercising the power as that of the Telegraph Authority under the Telegraph Act, on account of the notification under Section 164 of the Act consent of the owner or occupier may not be required, but some reasonable prior intimation should be given to the owner or occupier, enabling him to exercise his right to resist or obstruct, may be on the ground that the principles of least damage is not followed or may be on the ground that appropriate compensation is not paid or otherwise. The moment there is resistance or obstruction by the owner or occupier, the licensee has to stop his work, if any, or to withdraw from the property of the owner or the occupier. Thereafter, the licensee may approach before the District Magistrate for permission to lay down the line and the District Magistrate in exercise of the

C/SCA/1501/2021 ORDER

power may grant permission, but while granting permission, he may be required to examine the observance of the principles of little damage as possible and thereafter the permission may be granted. If permission is so granted by the District Magistrate, thereafter the owner or occupier cannot interfere in the work of laying down of the line unless the order of the District Magistrate granting permission is carried before the higher forum and any prohibitory order is passed by the competent forum or competent Court known to law. While granting permission under Section 16(1), the District Magistrate is not required to examine the aspect of sufficiency of compensation."

12. This Court cannot dispute the proposition of law

laid down by the Division Bench of this Court. In

the facts of the present case, the respondent no.1

has followed the procedure prescribed under

Section 10(d) of the Telegraph Act and tried to

see that less damage is done to the land in

question.

13. In case of Power Grid Corporation of India Ltd.

(supra), the Hon'ble Supreme Court has observed in

Para No.23 as under,

"23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place

C/SCA/1501/2021 ORDER

and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear 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. Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers."

14. This Court cannot dispute the proposition of law

laid down by the Hon'ble Supreme Court that the

Telegraph Authority is obliged to ensure that it

causes as little damage as possible and to pay

full compensation to the interested persons for

the damage sustained by them by reason of the

exercise of powers by the authority.

15. In the order dated 06.11.2020 passed by the

Division Bench of this Court in Letters Patent

Appeal No.534/2020, the Division Bench of this

Court has observed in Para No.58.16 as under,

C/SCA/1501/2021 ORDER

"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. 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 realigning of the route, on the premise that the District Collector cumDistrict 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."

16. Thus keeping in view the aforesaid decisions, if

the facts of the present case, as discussed

hereinabove, are examined, this Court is of the

view that no error is committed by the respondent

no.2 while passing impugned order. Similarly, this

Court is of the view that the respondent no.1 has

tried to see that little damage is caused to the

C/SCA/1501/2021 ORDER

land of the petitioner while exercising power

under the Telegraph Act. It is further revealed

that this is a case of shifting of transmission

line and not of installation of new transmission