Anjana ( Kharsana ) Kalubhai ... vs Gujarat Energy Transmission ...
2022 Latest Caselaw 10318 Guj

     C/SCA/11256/2018                        ORDER DATED: 22/12/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 11256 of 2018
=============================================
             ANJANA ( KHARSANA ) KALUBHAI VIRABHAI
                              Versus
 GUJARAT ENERGY TRANSMISSION CORPORATION LIMITED ( GETCO )
                            & 1 other(s)
=============================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
RUSHABH H MUNSHAW(8958) for the Petitioner(s) No. 1
for the Respondent(s) No. 3
MR SP HASURKAR(345) for the Respondent(s) No. 1,2
=============================================
 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 22/12/2022
ORAL ORDER

1. By way of this petition, under Article 226 of the

Constitution of India, the petitioner has prayed for the following

reliefs :-

"21(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent - GETCO to remove the two electricity lines passing over the lands of the petitioner herein as well as the third electricity line lying on the lands of the petitioner, and may further be pleased to direct respondent - GETCO not to pass any electricity lines over the lands bearing Revenue Survey No. 227, 228 and 229 belonging to the petitioner herein;

(AA) Your Lordships may be pleased to issue a writ of mandamus/certiorari or a writ in the nature of mandamus/ certiorari or any other appropriate writ, order or directions quashing and setting aside order dated 01.04.2019 passed by the learned Deputy Collector in

C/SCA/11256/2018 ORDER DATED: 22/12/2022

Land Case No. 6 of 2019 (Annexure-L herein);

(B) During pendency and final disposal of the present application, Your Lordships be pleased to direct the respondent - GETCO to maintain status quo, qua the lands bearing Revenue Survey No. 227, 228 and 229 belonging to the petitioner herein;

(BB) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation, implementation and execution of order dated 01.04.2019 passed by learned Deputy Collector in Land Case No. 6 of 2019 (Annexure-L herein);

(C ) Pass any such other and/or further orders that may be though just and proper, in the facts and circumstances of the present case."

2. It is the case of the petitioner that he is the owner and

occupier of the land bearing Survey Nos. 227, 228 and 229. The

respondent authority wanted to lay dual electric lines in the

area and initially when the District Magistrate passed an order

on 09.08.2016 allowing application filed by the respondent -

GETCO under Section 16(1) of the Indian Telegraphic Act, 1885

the lands belonging to the petitioner was not being included.

However without there being any permission, the respondent

authority has passed two electricity lines from the lands

belonging to the petitioner and for that purpose, no notice was

issued to the petitioner nor any procedure has been observed. It

C/SCA/11256/2018 ORDER DATED: 22/12/2022

has been the grievance of the petitioner that the said action of

laying down two electricity lines across the lands of the

petitioner was quite contrary to the order which has been

passed by the District Magistrate on 09.08.2016, and as such,

the action on the part of the respondent authority is not only in

conflict with the order passed by the District Magistrate, but is

also violative of the fundamental right under Articles 14, 21 as

also under Article 300A of the Constitution of India.

2.1. The case of the petitioner is that respondent - GETCO has

laid down dual electric lines of 66 KV Palanpur, Palanpur-1, Lilo

Laalavada and for that purpose of laying, towers/electric poles

were installed at various parts of the lands belonging to the

petitioner. At that point of time, it has been asserted by the

petitioner that on 22.01.2016, notices were issued to the owners

of the land over which the company intended to install the pole

for laying down the lines. No doubt, powers are available with

the respondent authority by virtue of Section 164 of the

Electricity Act, but for the said purpose, some procedure

deserves to be observed, which has not been observed and apart

C/SCA/11256/2018 ORDER DATED: 22/12/2022

from that for the damages to the lands in question, reasonable

amount of compensation is to be awarded. The said notice was

responded by the petitioner and the other land owners of

surrounding area. At the relevant point of time has also

questioned the said notice dated 22.01.2016 by filing petition

being Special Civil Application 3075 of 2016 and while disposing

of the said petition vide order dated 05.04.2016, it was observed

that the District Magistrate shall pass necessary order after

giving due opportunity to the affected persons including the

petitioner and the petition came to be disposed of. In the

meantime, the respondent authority also filed an application on

01.04.2016 under Section 16 of the Indian Telegraphic Act,

1885 along with the map and sought permission to start work

for installation of electricity lines over the lands of the

petitioner. Though it was originally not intended to affect the

lands belonging to the petitioner, but then somehow the lines

have been intended to be installed and later on even the District

Magistrate also passed the impugned order on 09.08.2016

allowing application under Section 16 and granted permission

to install the electricity towers over the lands belonging to the

C/SCA/11256/2018 ORDER DATED: 22/12/2022

land owners. It is the grievance of the petitioner that despite the

fact that the authority was under an obligation to observe the

terms of the order dated 09.08.2016 passed by the District

Magistrate, but having not done so, the land owners said to

have again approached this Court by way of Special Civil

Application 16946 of 2016 challenging the order as well as

action of the respondent authority. The said petition came to be

disposed of vide judgment and order dated 28.12.2017. After

the disposal of the said petition, the respondent - GETCO

initiated work of laying dual electric lines of 66KV Palanpur,

Palanpur-1, Lilo Laalavada. At that juncture, to the utter shock

of the petitioner though the land of the petitioner was not to be

affected, in an arbitrary manner, on 16.07.2018, when the

petitioner was not available, two electricity lines across the

lands of the petitioner have been implemented. On account of

this laying down of two electricity lines, animal shelter, houses

belonging to labourers were being effected and as such, the

petitioner requested the respondent authority, but then on the

very same day i.e. 16.07.2018, the respondents were trying to

lay down even the third electricity line and as such, left with no

C/SCA/11256/2018 ORDER DATED: 22/12/2022

other alternate, petitioner has to resist the same by way of a

specific objection vide communication dated 17.07.2018. It is

further the case of the petitioner that the respondent was under

an obligation to lay down electricity lines, in consonance with

the original order, but the dimension has been deliberately

changed and then the respondent authority decided to implant

the electric pole by laying down across the lands belonging to

the petitioner. Even otherwise, on 18.07.2018, the respondent

authority rushed down to the spot in an arbitrary manner with

the police force and the work was intended to be completed and

since same was in utter violation of the fundamental rights of

the petitioner, the petitioner was constrained to rush down this

Court by way of present petition under Article 226 of the

Constitution of India, for the reliefs as set out herein-above.

3. When the matter is taken up for hearing, on unilateral

version, this Court was pleased to issue notice returnable by

26.07.2018 but later on, it appears that in the absence of any

interim order, the respondent authority proceeded to lay down

the electric lines. Today, when the mater is taken up for

C/SCA/11256/2018 ORDER DATED: 22/12/2022

hearing, Mr. Rushabh Munshaw, learned advocate appearing

for the petitioner has submitted that this action is in utter

violation of the previous order as well as in violation of the

fundamental rights of the petitioner and as such, the lands

belonging to the petitioner could not have been utilized in the

manner in which the authority has used. Hence, this act is in

violation of the fundamental rights of the petitioner and as such,

the reliefs as prayed for may be granted.

4. At this stage, Mr. S.P. Hasurkar, learned advocate

appearing for the respondent authority who filed a detailed

exhaustive affidavit on page 116, and has asserted that by

passage of time the line has already been implanted and it is

charged as well and as such, at this stage of the proceedings, no

relief as prayed for deserves to be granted. This statement has

been made on the basis of clear instructions from the

respondent authority and has reiterated that the line which has

already been laid down is in function right from 01.07.2021 and

as such, has requested not to pass any order as prayed for even

otherwise on merits also, the learned counsel appearing for the

C/SCA/11256/2018 ORDER DATED: 22/12/2022

respondent authority has tried to justify the action of laying

down the line and has reiterated that challenge in the petition is

ill founded.

5. At this stage of the proceedings, learned advocate Mr.

Munshaw appearing for the petitioner has submitted that in

view of this statement having been made, electricity line has

already been laid down and is in operation right from

01.07.2021 and in view of this irreversible situation, at least the

authority is under an obligation to pay compensation for the

damage which has been caused to the lands of the petitioner on

account of such work and as such, has requested to issue

appropriate direction to consider the request of the petitioner

for seeking appropriate compensation, and as such, has

reiterated his submission only to the effect that some suitable

direction be issued to see that appropriate compensation

reasonably may be provided to the petitioner and for which,

under the instructions, learned advocate Mr. Munshaw has

submitted that the petitioner would like to approach the

respondent authority with such request for appropriate

C/SCA/11256/2018 ORDER DATED: 22/12/2022

reasonable compensation.

5.1. To this submission, learned advocate Mr. Hasurkar, has

submitted that the authority might have provided compensation,

but the petitioner might not have accepted the said

compensation. However, learned advocate Mr. Hasurkar has

submitted that if the petitioner approaches the authority with a

request for seeking such compensation, the authority will

examine and provide the same at the earliest. In view of this,

present petition deserves to be disposed of on the following line,

which would meet the ends of justice on account of such limited

issue which is now surviving.

6. The petitioner under the instruction is permitted to

withdraw the petition with a view to approach the respondent

authority by way of representation for seeking appropriate

compensation for the lands which have been affected on account

of such act of the respondent.

6.1. As and when the petitioner approaches the authority, the

authority is directed to examine and consider the same in

C/SCA/11256/2018 ORDER DATED: 22/12/2022

accordance with law and shall pass appropriate order preferably

within a period of eight (8) weeks from the date of receipt of

writ of this order.

6.2. It is made clear that since the Court has not examined the

merits of the case as not called upon, it would be open for the

petitioner to approach the authority and as and when such

approach is made, the authority shall pass an order at the

earliest within the period as indicated above. However, it is

made clear that if the compensation is found to be inadequate,

it would be open for the petitioner to approach the appropriate

authority for enhancement of such. It is also made clear that if

the request of the petitioner has not been adhered to, it would

be open for the petitioner to challenge the same in an

appropriate forum permissible under the law.

7. With the aforesaid liberty, petition stands disposed of as

withdrawn. Notice is discharged.

(ASHUTOSH J. SHASTRI, J) phalguni