Gujarat High Court
Executive Engineer, Gujarat ... vs Omprakash Narsinhbhai Padhiyar on 10 February, 2022
Bench: Vaibhavi D. Nanavati
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21620 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21620 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21621 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21621 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21622 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21622 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
EXECUTIVE ENGINEER, GUJARAT ENERGY TRANSMISSION
CORPORATION LTD.
Versus
OMPRAKASH NARSINHBHAI PADHIYAR
==========================================================
Appearance:
MR SP HASURKAR(345) for the Petitioner(s) No. 1,2
MR SHALIN MEHTA, SENIOR ADVOCATE with MR. NISHIT P
GANDHI(6946) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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Page 1 of 47
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C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 10/02/2022
ORAL JUDGMENT
1. The issue involved in all these writ-applications being
identical, all the writ-applications are taken up for adjudication
together.
2. These writ-applications under Article 226 of the
Constitution of India are at the instance of the Gujarat Energy
Transmission Corporation Ltd. The Special Civil Application
No.21620 of 2019 is taken up as lead matter. The writ-
applicant has prayed for the following reliefs in the Special
Civil Application No.21620 of 2019, which are produced thus :-
"(A) YOUR LORDSHIP be pleased to accept this petition.
(B) YOUR LORDSHIP be pleased to issue writ of certiorari,
or writ of the similar nature for calling the record and
proceedings from the file of Sub Divisional Magistrate Deesa in
the matter of Vijali case no1126 to1134 of 2019 dated 30th
March 30-3-2019 and further be pleased to quash and set
aside order dated 30th March 2019 at Annexure A. and further
pleased to permit the petitioner to lay the line in question
from the land of the respondent No1.
(C) YOUR LORDSHIP be pleased to stay operation and
implementation of judgement and order at annexure A, dated
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
30th March 2019 in the said matter passed in Vijali case
no1126 to1134 of 2019 by respondent No.2 pending admission
and final disposal of the petition.
(D) Any other just and proper relief, as deemed fit, may
also be granted in favour of the applicants."
3. The brief facts giving rise to the present writ-applications
are summarized thus :-
3.1 The writ-applicant published a notice/advertisement
notifying laying down 400 KV D/C Soaja-Zerda line on D/C
Tower with ACSR twin conductor discharging its function and
duties under Section 39 of the Electricity Act. The writ-
applicant is a licensee for laying down the above referred line
and is in receipt of all the necessary permissions and have also
approved route map from the competent authority. The
construction of the above referred line is almost completed to
the extent of more than 95%, out of the total work. Only five
locations remain out of which one such location is falling in
the land of the respondent No.1.
3.2 The Sub-Divisional Magistrate, Deesa was pleased to
accord permission by order dated 13.3.2018 and on 12.6.2018
in respective Vijali Cases. Necessary orders were passed
following due procedure and after affording opportunity of
hearing to all the concerned villagers. The said orders were
challenged before this Court in respective writ-petitions by the
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
writ-applicant as well as the respondent. This Court was
pleased to quash and set aside all the orders and remanded
back the matter to District Magistrate, Deesa for fresh hearing.
After hearing all concerned the Sub-Divisional Magistrate,
Deesa was pleased to grant application of the respondent and
refused the permission to the writ-applicant as contemplated
under Section 16(1) of the Telegraph Act, 1885.
3.3 The respondent herein had filed objections under Section
16 of the Act being Vijali Misc. Cases No.1126 to 1134
(Annexure-A page-35). The District Magistrate, Deesa
considered the application and passed the following order. The
operative order read thus :-
"ORDER
Order is hereby passed to "allow" application of the applicant.
Parties to be informed about the order.
Today on 30th March, 2019, signed by me and sealed with seal
of the court.
Sd/- illegible
(H.M. Patel)
Sub Division Magistrate
And Deputy Collector, Deesa"
3.4 Being aggrieved and dissatisfied by the order dated
30.3.2019 passed by the Sub-Divisional Magistrate, Deesa in
Vijali Cases No.1126 to 1134, whereby in exercise of power
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
under Section 16(1) of the Telegraph Act, 1885 the respondent
No.2 allowed the application of the respondent No.1 thereby
refused permission to the writ-applicant for laying down 400
KV D/C Soaja-Zerda line on D/C Tower with ACSR twin
conductor from the land of the respondent No.1 and to erect
the electricity tower in the land of respondent No.1 at Village :
Ranpur, Taluka : Deesa. The writ-applicant is constrained to
approach this Court being aggrieved by filing of the present
writ-application.
4. This Court by order dated 10.9.2020 stayed the impugned
order, which is produced thus :-
"1. The present petitions are directed against the order dated
30.03.2019 passed by the Deputy Collector, Deesa whereby, it
rejected the applications preferred by the petitioners for
permission under Section 16(1) of the Telegraph Act, 1885.
2. While rejecting the applications, the competent authority
noticed that Gazette publishing route of the line in question
do not state names of Village: Ranpur Ugamnovas and Ranpur
Vachlovas and the line is passing through these villages and
disputed locations are falling in these two villages. Further,
the change in route of line is not permissible unless it is
authorized by the Government. As per the decision rendered
in the case of Himmatbhai Vallabhbhai Patel V/s. Chief
Engineer (Project) Gujarat Energy Transmission and Ors.
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
reported in 2011(2) G.L.H. 781 and, more particularly, para
44 thereof provides an answer to such contentions. The said
para 44 of judgment reads as under:-
"44. In this context, it is pertinent to note that in view
of the fact that in all entries in respect of all areas, the
phrase used in the said notice is "area around and
between ....." and the names of all villages or any
specific area or specific survey number through which the
land is to be laid i.e. the area and survey number
forming part of the route are not necessarily to be
mentioned with all details in the notice."
3. In the identical factual scenario, the Division Bench of this
Court has observed in para 52 of the above decision as
under:-
"52. In the aforesaid view of the matter, the impugned
action of the respondents cannot be held to be arbitrary,
illegal or contrary to the provisions of the Electricity Act,
2003 on any ground whatsoever. Section 164 of the
Electricity Act, 2003 read with Section 10 of the Indian
Telegraphs Act, 1885 recognized the absolute power of
the respondent Company to proceed with laying high
tension electric lines or electric polls for the transmission
of electricity on or over the lands belonging to the
appellant herein subject to the right of the appellant to
claim compensation if any damage is sustained by him by
reason of laying such high tension electric lines. In other
words, neither the acquisition of lands is necessary nor
there is any need for consent of the appellant. Hence, no
mandamus can be issued restraining the respondent
Company from proceeding with the erection of polls and
transmission lines through the land of the appellant.
However, this shall not preclude the appellant to claim
compensation by working out the appropriate remedy as
available under law in case any damage is sustained to
his property."
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
4. Reliance placed by learned advocate Mr.N.P. Gandhi for
respondent No.1 on the decision of the Division Bench of this
Court rendered in Letters Patent Appeal No.1104 of 2013 and
allied matters is misplaced on the facts as no approval for
route is required under Section 68 of the Electricity Act,
2003.
5. Therefore, in view of the decision of the Division Bench of
this Court rendered in the case of Himmatbhai Vallabhbhai
Patel (supra), present petitions deserve consideration.
6. Let there be Rule. Meanwhile, relief in terms of para 6(c)
is granted in all the petitions."
Submissions on behalf of the writ-applicant :-
5. Mr. S. P. Hasurkar, the learned advocate appearing for
the writ-applicant has filed written submissions, which are
taken on record.
5.1 Mr. Hasurkar, the learned advocate submitted that all
these writ-applications are against the order passed by Deputy
Collector Deesa dtd.30.3.2019 rejecting the applications
preferred by writ-applicant for permission under Section 16(1)
of Telegraph Act 1885. In all the above petitions though,
separate orders are passed the same consist of almost identical
reasons.
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
5.2 Mr. Hasurkar, the learned advocate submitted that the
writ-applicant is officer of a State Transmission Utility GETCO
under Section 39 of Electricity Act 2003 here in after referred
to as Electricity Act for short. Once transmission company is
declared as state transmission Utility, it is deemed licensee
under Section 14 of the Act. There is no dispute as to the fact
that petitioner is conferred with the powers of Telegraph
Authority under Telegraph Act 1885. Section 164 of the
Electricity Act envisages authority of appropriate Government
to confer powers on any one who is engaged in the business of
supplying electricity.
5.3 Mr. Hasurkar, the learned advocate submitted that the
transmission line in question is 400 KV D/C Soja- Zerda line
on D/c Tower with ACSR twin Moose Conductor. It is divided
in two parts and out of which we are concerned with part 2
of the said line of 67.86 KMs.
He submitted that the Gazette Notification advertising
line was published 0n 3.12.2015. Entire line in question is
completed except 5 ½ locations involved in the present
petitions. Since respondent in present writ-applicants have
obstructed petitioner officer of GETCO approached District
Magistrate Banaskantha for his permission as envisaged in
Section 16(1) of Telegraph Act. The said permission is rejected
vide order 30.3.2019.
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
5.4 Mr. Hasurkar, the learned advocate submitted that
grounds for rejection of the application are :-
(a) Gazette publishing route of the line in question states name
of Village Ranpur Athmnovas and do not state names of
Village Ranpur Ugamnovas and Ranpur vachlovas, and the line
is passing through these villages and disputed locations are
falling in these two villages.
(b) Change in route of line is not permissible unless it is
authorized by Government.
(c) It is observed in the order on the basis of contention of
the respondents, that line in question is deviated for saving the
property belonging to father of the officer of the GETCO i.e.
petitioner. The said property is situated in Village Bhoyan and
though name of the village Bhoyan is appearing in the Gazette
now line is not going from the said village therefore it is
evident that line is unauthorized deviated.
He submitted that answer to the above grounds :
(a) It is answered in the petition contending firstly that, A)
borders of these three villages namely Ranpur Athmonovas,
Ranpur Ugamnovas, Ranpur Vachlovas are so clumsily
intermixed, that an outsider will not be able to make out any
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
distinction that these villages are separate; B) no notice or
advertisement, publishing in Gazette is necessary ie legal
requirement ; C) that it is not necessary to state names of each
and every village since gazette specifically states that line is
passing through "area around and between". This very point
was answered in judgment rendered by this Hon'ble High
Court in a judgment rendered in the matter of Himmatbahi
Patel V/s Dy Engg. Reported in 2011 -2-GLH 781.
(b) Change in route has to be authorized by Government is
misconception. Section 68 is saying only prior approval and
said approval is on record at page128 to130.
He submitted that Section 3 is referred in the impugned
order, at many places such as para 4, para 6 and similarly
while considering the submissions of the respondent at page
46, 47 and at every time it is referred to without reference to
the Act. It is submitted that relying upon such incomplete
provisions, it is observed in the order that variation in route is
not permissible unless such variation is authorized. He
submitted that such was the provision of Sub Section 3 of
Section 28 of Supply Act 1948, which stands now repealed by
Section 185 of the Electricity Act 2003.
3) Deviation of the route: This contention is required to be
answered as follows:
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
A) There is no deviation as contended by the petitioner to save
the land of the petitioner's officer's father which is situated at
Village Bhoyan. The same is answered by filling affidavit of
the very officer. Deviation which has taken place and which is
authorized by competent officer is at a far distance from the
land of the said officer's father situated in Village Bhoyan.
When deviation was approved by due process on an
application of agency the said officer was holding the post at
the distance of aprox. 120 Kms.
B) Looking to the approved route (prior to deviation and after
deviation) at no point of time line was ever passing through
village Bhoyan. For proving this fact it is stated in rejoinder
affidavit para 5 relying upon document of the respondent with
reply page178 to 188 that none of the location is falling in any
of the land of Village Bhoyan. [respondent has produced survey
report produced before District Magistrate by petitioner. The
said report gives out locations of each angle point. It is stated
in the affidavit that none of the location is falling in village
Bhoyan]. Answer as to, then why name of the village Bhoyan
is appearing is given in separate affidavit that filed in the
Special Civil Application No 21622 of 2019( which is adopted
in and annexed to rejoinder) as to it was a mistake and
nothing more than mistake. In rejoinder affidavit it is further
stated that there are many other villages which are stated in
Gazette and yet line is not passing through the said Villages
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
P342 and 343.
C) Whatever deviation was there it is in between location
AP130to Ap142 which elucidated through maps on page 130
and 131 of the memo of special Civil Application and the same
is approved by competent authority P309. It is therefore
submitted that it cannot be contended that deviation is
unauthorized.
4) There is inconsistency in the reasons assigned for
deviation: Reasons for deviation are sated in the approval by
competent authority and it is documented, therefore contention
as to inconsistency in reasons in pleadings or affidavits as
alleged pales in to insignificance.
5) Definite contention is pleaded in the memo of Special
Civil Application that minor deviation is permissible as
observed in the judgment rendered by this Court in a judgment
rendered in Letters Patent Appeal No 1104 of 2013 and other
allied matters (Ground 3.6 P27) in the present case maximum
deviation is 200 mtrs P29 this assertion is not disputed by the
respondent.
6) Similar such contention as to omission of name of village
therefore passing of line is unauthorized is dealt with by this
Hon'ble Court in Special Civil Application No 17485 of 2016
relying upon judgment rendered in the matter of Himmatbahi
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
Patel (supra).
It is therefore submitted that writ-applications may be
allowed and impugned order of the Dy Collector may be set
aside and writ-applicant may be permitted to proceed with the
work of erection and construction of transmission line in
question as ought to have been permitted by District
Magistrate under Section16(1) of Telegraph Act.
5.5 Mr. Hasurkar, the learned advocate submitted that with
reference to obtaining of prior approval is concerned, until
August 2013 Gujarat Energy Transmission Corporation never
used to have prior approval of any line under Section 68 of
Act of 2003, considering that it is not required for the reason
being, it is declared as State Transmission Utility under Section
39 of the Act of 2003 and has to discharge duty to undertake
transmission of electricity through intra-state transmission
system. However, during the course hearing of Special Civil
Application No 18334 of 2011 and allied matters before
Division Bench of this Hon'ble High Court (Coram Mr/s Justice
Jayant Patel and Z.K Sayed) need was felt to have specific
approval under Section 68 of the Act of 2003 out of abundant
caution. A proposal was then moved requesting for approval
of all lines, previously installed being installed, and were then
under planning. State Government in its Energy and
Petroleum Department was pleased to accord such approval.
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
As time went on in batches one after other proposals
were moved for such approvals and Government granted all
such approvals. It is pertinent to note for line in question, one
approval was already granted way back in the year 2013 and
the same was also published in Official Gazette. It is
procedural fallacy that in 2017 again the proposal was made
and the same was also granted as post facto approval which is
on record at page128 to 130.
5.6 Mr. Hasurkar, the learned advocate submitted that
revised route approval on page no. 309,308 read with 307 of
record of the case on hand, it is contended by the other side
that these revised route approvals are incomplete since no
profile route approvals are placed on record, therefore it
cannot be said that revised route is finally approved by
GETCO. Apropos to the said contention profile route approval
is also now placed on record to rule out any doubt that such
revised profile route approval might not have been granted. He
submitted that GETCO being body corporate has delegation of
powers for carrying out its day-to-day function through its
officers. According to such delegation of powers route approval
for all lines is granted by Chief Engineer Project.
Submissions on behalf of the respondent :-
6. Heard Mr. Shalin Mehta, the learned Senior Advocate
assisted by Mr. Nishit P. Gandhi, the learned advocate for the
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
respondent No.1.
6.1 Mr. Mehta, the learned Senior Advocate vehemently
submitted that the impugned order dated 30.3.2019 passed in
Vijali Case No.1126 to 1134 of 2019 by the respondent No.2 is
just and proper and the respondent No.2 has rightly refused
the permission to the writ-applicant as contemplated under
Section 16(1) of the Telegraph Act, 1885.
6.2 Mr. Mehta, the learned Senior Advocate submitted that
the alteration by the respondent authority was substantial with
respect to the transmission line and, therefore, he submitted to
remand back the matter for consideration by the respondent
No.2 for a limited purpose as to decide whether the alteration
with respect to the laying down of the aforesaid transmission
line at Ranpura, Ugamnowas i.e. the disputed land. In support
of his submissions he relied on the decision of this Court in
2015 AIJEL- High Court 233304. He submitted that the
alteration is not minor and the same is substantial and,
therefore, it requires reconsideration at the instance of the
respondent No.2 authority.
7. Heard Mr. S. P. Hasurkar, the learned advocate appearing
for the writ-applicant and Mr. Shalin Mehta, the learned Senior
Advocate assisted by Mr. Nishit Gandhi, the learned advocate
for the respondent No.1.
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
Position of law :-
8. In the judgment dated 22.4.2011 in the case of
Mukundbhai Baldevbhai Patel vs. Chief Engineer (Project) and
Ors., in Special Civil Application No.3444 of 2011 and allied
matters, the Court in paragraphs 10.1 to 10.3 :-
"10.1. In this context it is pertinent to note that in view of
the fact that in all entries in respect of all area the phrase
used in the said Notice is "area around and between.....",
and the names of all villages or any specific area or
specific survey numbers through which the line is to be laid
i.e. the area and survey numbers forming part of the route
are not mentioned with all details in the notice.
The subject notice merely broadly describes the
area through which the proposed overhead electricity
line would be passing i.e. the proposed route of the line
would be passing i.e. the proposed route of the line.
10.2. Hence, when only broad description is mentioned
and in respect of any area or the entire route any specific
details are not mentioned, then the owners of the land of any
particular Survey Number can not make, and would not be
justified in making, grievance that its reference is not
mentioned and therefore any work on or through the
land/survey number not mentioned/included in the Notice can
not be started. Thus, the grievance of the petitioner does not
merit consideration.
10.3. On this count the respondent No.3 company has
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
contended that actually in view of the relevant provisions,
there is no obligation on the respondent No.3 company to
even issue such notice before commencing the work and that
therefore even if it is assumed that any particular area is not
expressly mentioned in the notice then also, it would not
affect or impeach upon the respondent company's right and
obligation to lay the overhead lines and complete the project
of public importance."
8.1 In the case of Himmatbhai Vallabhbhai Patel Versus
Chief Engineer (Project) Guj.Energy Transmission, reported in
2011 (2) GLH, the Court held in paragraphs 32 to 34 and 41
to 45 as under :-
"(32.) We have exhaustively dealt with this issue in the above
referred paragraphs and we have explained as to why consent
is not necessary. The paragraph which has been relied upon
by the learned Counsel of the above referred judgment itself
makes it clear that principles of natural justice can be read
into a statute which is silent unless a statutory provision
specifically or by necessary implications dispenses with the
principles of natural justice. These observations are important.
(33.) As explained earlier that when the Electricity Board
exercises power under Sec. 164 of the Electricity Act read
with Sec. 10 of the Telegraphs Act, they are not acquiring
any land, they are only making use of the land for the
purpose of laying electric lines, for which, full compensation
is given for the damage caused. It is clear therefrom that no
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
notice is required to the owner before laying the polls or
constructing any tower, nor any consent is required from
them.
(34.) It is also relevant to note that since Sec. 28 or 42 of the
Electricity (Supply) Act, 1948 are not saved under Sec. 185 of
the Electricity Act, 2003 , there is no need to publish a
sanctioned scheme nor it is necessary to give any notice by
publication in local news papers as required under Sec. 29 (2)
of the Electricity (Supply) Act, 1948. In spite of the same, the
notification dated 29-7-2010 was published in the Guj.
Government Gazette as well as local dailies inviting objections
from the interested/aggrieved persons and no objections were
received from anyone.
(41.) It is apparent that the public notice dated 29th Jul. 2010
has been issued not for one project but for almost 30 different
projects/schemes proposed and planned to be undertaken by
respondent No. 2 Company for laying overhead line in
different areas in different cities/towns.
(42.) One of the entries in the said notice i.e. Entry at Serial
No.7 reads thus :-
(43.) Relying and reading name and brief particulars of the
scheme as provided at Serial No.7 and the area of work, the
appellant contends that there is no reference of the place
where his land is situated.
(44.) In this context, it is pertinent to note that in view of
the fact that in all entries in respect of all areas, the phrase
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
used in the said notice is "area around and between ....." and
the names of all villages or any specific area or specific
survey number through which the land is to be laid i.e. the
area and survey number forming part of the route are not
necessarily to be mentioned with all details in the notice.
(45.) Learned Single Judge has rightly held that the notice
merely broadly describes the area through which the proposed
overhead electricity line would be passing i.e. proposed route
of the line would be passing.
8.2 The law with regard to the laying down of transmission
line is well settled. The ratio as laid down by the Division
Bench of this Court in the Letters Patent Appeal No.No.534 of
2020 CAV Judgment dated 6.11.2020, paragraph 58 to 60 are
produced thus :-
"58. The final conclusions are as under:-
58.1 The Part III of the Telegraph Act, 1885, deals with the
Power to place "Telegraph Lines and Posts" and there are
other provisions in the said Act, applicable to all the
properties. As seen from the plethora of cases, the powers
conferred on the telegraph authority to place and maintain
telegraph lines and towers, are traceable to Sections 10, 11
and 14 of the Act, 1885 and by virtue of Section 164 of the
Electricity Act, 2003, it is conferred on any public officer,
licensee or any other person engaged in the business of
supplying electricity.
58.2 As per Clause (c) to Section 10, the authority can
exercise its powers in respect of the property of a local
authority only, by obtaining permission of that authority,
whereas, no such permission is required in relation to the
C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
property of others. Section 10 does not contemplate notice to
an owner or occupier of land to show cause against laying of
a line and it authorizes the telegraph authority, to place a
telegraph line under, over, along or across any immovable
property. The proviso makes it clear that the licencee or any
other authorised person does not acquire any right, other
than that of user of the property. The right conferred on the
land owner is only to seek for payment of compensation for
any damage sustained by him, by reason of exercise of the
powers.
58.3 Section 10 of the Indian Telegraph Act, 1885, confers a
legal sanction to a telegraph authority to enter into any
private property, subject to the condition that, while entering
into the property and during the course of execution of any
work, the telegraph authority is under an obligation to cause
as little damage, as possible, and shall pay full compensation
to all the persons interested for any damage sustained by
them, while exercising the powers conferred under Section 10
of the Act.
58.4. When power of the telegraph authority to enter into
any private property, is subject to the conditions to cause as
little damage as possible, and when there is a provision for
payment of compensation, the question as to whether, the
said authority should seek for consent from the owner of the
property, or provide him an opportunity of hearing before
entering into the property, does not arise. However, the land
owner may be informed of the work to be executed.
58.5 Since the powers under Section 10 of the Indian
Telegraph Act, 1885, can be exercised without acquiring the
land in question, once an order is passed by the appropriate
government under Section 164 of the Electricity Act, 2003,
the public officer, licensee or any other person engaged in
the business of supplying electricity shall be entitled to
proceed with the works of placing the electric lines without
acquiring the land in question. Usage of the land by the
licencee or the authorised person, does not amount to
acquisition.
58.6 Section 164 of the Electricity Act, 2003, empowers the
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State Government to confer, by an order in writing, powers
which the telegraph authority possesses under the Indian
Telegraph Act, 1885, with respect to placing of the telegraph
lines and posts, on any public officer, licensee or any other
person engaged in the business of supplying electricity under
that Act, for placing of electrical plants and electric lines, in
terms of Section 2(20), which defines "electric line", as any
line which is used for carrying electricity for any purpose and
includes--
"(a) any support for any such line, that is to say, any
structure, tower, pole or other thing in, on, by or from
which any such line is, or may be, supported, carried or
suspended; and (b) any apparatus connected to any such
line for the purpose of carrying electricity;"
58.7 The power conferred on any public officer, licensee or
any other person engaged in the business of supplying
electricity under the Electricity Act, for the abovesaid
purpose, may be subject to such conditions, if any, the
Government may deem fit to impose and also subject to the
provisions of the Indian Telegraph Act, 1885.
58.8 The authorisation, in terms of Section 164 of the
Electricity Act, 2003, read with Section 10 of the Indian
Telegraph Act, 1885, authorising the public officer or licencee
or any other person engaged in supplying electricity, all the
powers of the Telegraph Authority, which includes the power
to enter into any private property, subject to the condition
that while entering into the property and the public officer or
licensee or any other person, authorised under the Act, is
under an obligation to cause as little damage as possible,
with a guarantee for payment of compensation for the owner
of the land or the persons interested.
58.9 Sections 16 and 17 respectively of the Indian Telegraph
Act, 1885, do not limit the absolute powers of the telegraph
authority to enter into any property for the purpose of
enforcement of Section 10 of the Indian Telegraph Act, 1885,
read with Section 164 of the Electricity Act, 2003, by which,
the public officer or licensee or any other person engaged in
the business of supplying electricity under this Act, is
empowered to exercise all the powers, for the purpose of
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placing electrical plant, line, erection of towers, conductors,
poles, etc.
58.10 The intention of the Legislature, is to provide
electricity, in terms of Section 43 of the Electricity Act, 2003.
When the purpose of the Act, is to provide the basic amenity
of electricity to the public at large, and if every
objection/resistance has to be entertained under Section 16(1)
of the Indian Telegraph Act, 1885, then it would render
Section 10 of the Indian Telegraph Act, 1885 and Section 164
of the Electricity Act, 2003, meaningless, thereby, the power
conferred on the telegraph authority to enter into any
property, subject to causing, as little damage as possible,
with an assurance of payment of compensation to the
damage, if any, would be redundant.
58.11 If Section 16(1) of the Act, has to be construed,
conferring a right on the landowner to seek for an
opportunity of prior notice or consent, then the very purpose
of Section 10 of the Indian Telegraph Act, 1885 and Section
164 of the Electricity Act, 2003, would be defeated.
58.12 Vis-a-vis Section 185 (2) (b) of the Electricity Act, 2003
and Section 12 (2) of the repealed Indian Electricity Act,
1910, under which the consent of the owner or occupier is
essential and on the issue, as to the enforceability of Section
12 of the Act, until the Rules are made under Section 67 of
the Electricity Act, 2003, consent of the owner or occupier is
necessary, only in the absence of any order, passed under
Section 164 of the Electricity Act, 2003.
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
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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
oncerned owner or occupier, may be required, under Section
12 (2) of the Indian Electricity Act, 1910.
58.15 The provisions of the Works of Licensees Rules, 2006
made under Section 67 (2) of the Electricity Act, 2003 are in
pari materia to Section 12 of the repealed Indian Electricity
Act, 1910. The Works of Licensees Rules, 2006 are applicable,
only in a case, where the works have been taken up by the
licensee, under Section 67 (1) of the Electricity Act, 2003. But
Section 67 (1) of the Electricity Act, 2003, as well as the
rules made under Section 67 (2) would govern the field, only
in the absence of an order, under Section 164 of the
Electricity Act, 2003.
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 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.
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58.17 If the intention of the Legislature was to seek for
consent or permission from every owner and if the right of
such owner has to be recognised, in terms of Section 16(1) of
the Telegraph Act, due to resistance/obstruction, then the
execution of any work or project, would be stopped at every
stage. Needless to state that the execution of works, involving
erection of towers and connection of overhead lines, is done,
only after a detailed field study, by identifying a feasible
route of the proposed transmission line, and while selecting
suitable corridors, residential areas to be avoided, span
length, the angle of deviation, extent of damage, likely to be
caused, while erecting towers, maintenance cost of electric
lines and towers and other factors, have to be considered.
Public interest, in providing electricity to a large section of
people and industrial establishments, etc., has to be given
weightage over private interest.
58.18 If the authorities have to recognize the right of
obstruction or resistance, in terms of Section 16(1) of the
Indian Telegraph Act, 1885, then the moment, any
notification is published, all the landowners or interested
persons, who have the knowledge of the commencement of
any development work, would immediately resist or obstruct
the work, and may even seek for re-location or if the towers,
posts had already been erected, may seek for re-alignment or
removal of towers and plants, erected by the public officer or
licensee or any other person, engaged in the business of
supplying electricity, authorised to carry out the works, in
terms of an order passed by the appropriate Government,
under Section 164 of the Electricity Act, 2003.
58.19 When a project involves huge expenditure, erection of
many towers at various places and when such project
involves, greater public interest, then even a single owner,
under the pretext of making objections/resistance, would
attempt to stall the process of execution of the project. When
entry into any property is legally authorised, with payment of
compensation to the land owner, no prior consent is required.
58.20 The Apex Court and other Courts in India, have
categorically held that the action of the licencee or the
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competent authority, in erecting poles or posts, in the
property or drawing lines over the property, does not amount
to acquisition of lands and it amounts to only user of the
property to the extent indicated and therefore, there is no
requirement to intiate any land acquisition proceedings, giving
opportunity to the land owners, when execution of the work,
is ordered under Section 164 of the Act and accordingly,
carried out by the licencee or any other competent authority.
58.21 Even if any Court issues any directions to consider the
representation of any land owner or person interested, such
directions are required to be considered only to the limited
extent of payment of compensation, to be given by the
licencee or the competent authority and the directions issued,
if any, would not empower the District Collector-cum-District
Magistrate, to pass any order, contrary to the orders, passed
under Section 164 of the Act.
58.22. When the appropriate Government passes an order
under Section 164 of the Act, the Collector is bound by the
said order, and he is not superior to the Government, to hold
that the Government has erred in passing an order, under
Section 164 of the Act, authorising the licencee or the
competent authority to carry out the work, in the route,
which involves Techno Economic Consideration.
58.23 The Act confers powers to the Telegraph Authority to
determine the property over which the lines are to pass or
posts to be erected. The powers of the District Magistrate
under Section 16(1) of the Indian Telegraph Act, 1885, does
not extent to any adjudication, as to from where and how,
the line has to be drawn over any specific item of the
property or where posts have to be erected or not, in any
specific item of the property.
58.24 The Power of the District Magistrate is confined only to
the extent of exercising his discretion in granting permission
to the Telegraph Act, to execute the work, when an
application is made by the licencee or the competent
authority.
58.25. Section 10 of the Indian Telegraph Act gives legal
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sanction to the licencing authority to enter into any property,
to lay poles or posts or draw electric lines. But while doing
so, the damage of the property should be less. If there is any
resistance, the licencee or the authorised person may
approach the District Magistrate-cum-District Collector, to
grant permission.
58.26. Once the power is conferred on the licencee or any
other competent authority, there can be no objection to the
implementation of the scheme, on the principles of natural
justice or on the ground of unauthorised use of the land.
58.27. The legislature has conferred powers on the appropriate
Government to authorize a public officer or a licencee, etc.,
under the Electricity Act to exercise the specific powers of an
authority under the Indian Telegraph Act, 1885. The
authorisation may be general in favour of a transmission
company or in a given case, special. The route is decided by
the transmission company. The decision to mark a route for
laying an electric line is a highly specialized and technical. At
that time, it is unrelated to any specific land owner. The
route may be for over hundreds of kilometers passing over
Government lands, lands of local authorities and private lands
and it may not be practicable to hear the land owners along
the entire route.
58.28. Having regard to the specialized and technical nature
of the task, and the fact that the lines are laid for distribution
of electricity, it is the view of this Court that, the Legislature
has not provided for any notice or hearing to the public at
large, or to the land owners. Therefore, when the appropriate
Government authorises a person or any body under the
Electricity Act, to exercise the powers of the Telegraph
Authority, all the powers under the Indian Telegraph Act,
1885, are meant to be exercised.
58.29. The Electricity Act, 2003, is a progressive enactment,
with a specific purpose of providing electricity to a large
number of people, across the country, to promote industrial
and sustainable development in all walks of life. Right of a
land owner to possess and enjoy the property, though
recognised as a Constitutional Right, under Article 300-A of
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the Constitution of India, such right has to yield to the
Articles 14 and 21 respectively of the Constitution of India,
which strive to achieve the Constitutional Goals, enshrined in
the basic structure of the Constitution of India. [see T.
Bhuvaneswari vs. The District Collector cum District
Magistrate, Erode District, Erode, W.P. No.18548 of 2013,
decided on 19.11.2013]
59. In the overall view of the matter, we are convinced that
no case is made out by the writ applicant for grant of any
relief. The writ applicant, at any cost, wants to stall a very
important public project by unnecessarily raising one objection
or the other. If, ultimately, any damage is caused to his land,
he would be adequately compensated in terms of money.
However, it is difficult for us to accept the argument of Mr.
Dholaria that as there is a statutory obligation cast upon the
authority to ensure that minimal damage is caused, his client,
as an affected person, has a right to ask the authority to shift
the alignment or the route. In our opinion, the interpretation
put forward by Mr. Dholariya of the expression "do little
damage to property" is not tenable in law. By virtue of the
same, Mr. Dholaria cannot contend that as the value of the
land may get diminished, the authority should change the
alignment and reallocate the route. The expression "do little
damage to property", in our opinion, should be construed as
to ensure that while laying the pole at the place allocated,
minimal damage is caused at the time of erection. It is always
open for the writ applicant to raise dispute with respect to
the sufficiency of compensation under Section 16(4) of the
Telegraph Act before the District Judge in accordance with
law.
60. In the result, the appeal preferred by the Corporation is
allowed. The interim order is hereby quashed and set aside.
The Special Civil Application No.20373 of 2019 preferred by
the original writ applicant is hereby rejected. "
8.3 The Division Bench of this Court in the order dated
23.12.2021 passed in Letters patent Appeal No.823 of 2021
held as under :-
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"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 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
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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 (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
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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
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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.
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
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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 theagricultural 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."
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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 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
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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 them as respondents, such
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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
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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 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:-
O R D E R
(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."
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Analysis :-
9. The writ-applicant is Gujarat Energy Transmission
Corporation Ltd., having its corporate office at Vadodara and
its construction divisional office is at 132 KV Sub-Station,
Deesa. The Gujarat Energy Transmission Corporation Ltd., (for
short 'GETCO') is a transmission licensee under Section 14 of
the Electricity Act, 2003 ( for short 'Act 2003'). The GETCO
being transmission licensee, the Government of Gujarat notified
it as State Transmission utility to discharge certain functions
under Section 39 of the Electricity Act. For the purpose of
discharging functions and duties under Section 39 of the Act,
2003, the writ-applicant published a notice/advertisement
notifying laying down 400 KV D/C Soaja-Zerda line on D/C
Tower with ACSR twin conductor. For the purpose of laying
down the above referred line the writ-applicant obtained all
the necessary permission and got approved the route map from
the competent authority. The construction of the above
referred line is complete to the extent of 95%. Only five
locations remained for laying down the above referred line.
When the line reached Ranpur Athamanowas, some of the
villagers which includes respondent No.1 filed their objections
under Section 16(1) of the Telegraph Act, 1885. The Sub-
Divisional Magistrate, Deesa accorded permission for laying
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down the line in respect of Vijali Cases by order dated
30.3.2019 and 12.6.2018. The respondent herein challenged the
said order passed by the District Magistrate, Deesa before this
Court. This Court remanded the matter to the Magistrate to
decide afresh. The respondent No.2 refused the permission to
the writ-applicant on the following grounds which are
produced thus :-
(a) Gazette publishing route of the line in question states name
of Village Ranpur Athmnovas and do not state names of
Village Ranpur Ugamnovas and Ranpur vachlovas, and the line
is passing through these villages and disputed locations are
falling in these two villages.
(b) Change in route of line is not permissible unless it is
authorized by Government.
(c) It is observed in the order on the basis of contention of
the respondents, that line in question is deviated for saving the
property belonging to father of the officer of the GETCO i.e.
petitioner. The said property is situated in Village Bhoyan and
though name of the village Bhoyan is appearing in the Gazette
now line is not going from the said village therefore it is
evident that line is unauthorized deviated.
The Gazette notification published on 11.7.2013 reads
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thus :-
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The Gazette notification under Section 164 advertising the line
came to be published on 3.12.2015
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The relevant part of the public notice dated 3.12.2015 is
produced thus:-
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C/SCA/21620/2019 JUDGMENT DATED: 10/02/2022
9.1 It is not in dispute that the writ-applicant is in possession
of the requisite permission for laying down the electricity line
under the provisions of the Electricity Act. The writ-applicant
obtained prior approval for laying down the said line under
Section 68 of the Act, 2003 in the year 2013 which came to
be granted to the writ-applicant on 2.7.2013 and the same was
published in Official Gazette on 6.7.2013 which is duly
produced at Page-363. The revised route is also duly approved
and the same is reflected from pages 307 to 309. The profile
routes approval are also duly produced on the record which
came to be finally approved by the GETCO. The profile route
approval is duly produced at pages 365 and 366. The route
approval is produced at page 319. Further it is not in dispute
that none of the location is falling in the land of Village :
Bhoyan. The said is substantiated by a survey report which
was duly produced before the District Magistrate. The
contention that the disputed route came to be deviated on
account of the writ-applicant's father residing in Village :
Bhoyan is answered by filing of affidavit by the competent
officer stating that it is at a further distance of the land where
the officer's father reside. The said affidavit reads thus :-
"Further Affidavit in support of the petitioner
I, N.B.Padhiyar Executive Engineer, Construction Division, Deesa ,
Gujarat Energy Transmission Corporation, do hereby solemnly affirm
on oath and state that:
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1. I am filing this affidavit-in- support of the petition since I am
directed to file specific statement regarding observations made by
District Magistrate in Para 3 of the impugned order regarding land
inthe name of my father which is situated at Village Bhoyan and in
order to save the said land form going under subject line deviation
is made :
I make following statements categorically.
2 . There is no dispute as to the fact that there is a land of my
father in village Bhoyan. However I deny the said allegation of the
respondents and I state that said allegations are factually incorrect.
The said land in village Bhoyan is situated approximately 2 Kms
away from the point where route is diverted and not less than 2
Kms away from the land of the present respondents. If we peruse
the map on page 129 and 130 I state that, we have diverted the
line from pole No 130/0. It would be amply clear from map on
page 129 will, it will show at pole 130/o there is no deviation and
on page 130 there is deviation marked thereat. Petitioners land is
falling in between and surrounding pole 133/0 to 133/1 .Village
Bhoyan is situated on the southern side of village Kant (map).
3. Village Bhoyan as is appearing in the notification because,
when original survey was made it was conducted under Mehsana
Circle and officers who have assisted in survey might have made
mistake in ascertaining correct the names of villages. Normally all
care is taken toavoid such mistakes but somehow in present case it
has been crept in through inadvertence. Otherwise if we look at the
maps on record Village Bhoyan was nowhere in picture and
whatever deviation was made is in a very small span ie 130/0to
142/0.
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4. It is pertinent to note that I reiterate my submission on page
29 in form of statement in this affidavit as follows: Despite above
both the law points were brought to the notice of respondent no2
he was pleased to pass the impugned order. It is further pertinent to
note that deviation of the route in the present case was required to
save superstructures and 66KV LILO Kant line which came in
existence after the survey. It is also pertinent to note that original
survey of the line was carried out in the year 2012 and execution of
the work on the said surveyed route reached to questioned location
in the year June 2017. Be that as it may deviation was also
approved by the competent authority. Learned District Magistrate
ought to have appreciated that maximum deviation from original
route is only 200 mtrs.
5. I further make categorical statement that when revised route
alignment was approved I was posted at Vijapur approximately 120
Kms away from Deesa. I came to Deesa on 17-2017. Proposal for
present revised route alignment was submitted by agency on 2212-
2016 and it was approved on 1-3-2017 by GETCO corporate office
at Vadodara. It is necessary to note that said proposal is passing
through scrutiny of four levels and entire process is objective and I
played no role in it.
Solemnly affirmed at06 on this day of August
2020."
There is no reason for this Court to doubt the same.
9.2 The writ-applicant has further stated on oath that the
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deviation from the original route is only 200 meters which
cannot be said to be a substantial deviation. The said is stated
on oath by the writ-applicant and the respondent has been
unable to rebut the same.
9.3 In view of the above referred ratio as laid down by this
Court, the submissions made by Mr. Hasurkar, the learned
advocate appearing for the writ-applicant is required to be
accepted that if the borders of the three villages viz. Ranpur,
Athamnowas, Ranpur Ugamnowas and Ranpur Vachlovas are
clumsily intermixed, omission of name of the village in the
gazette notification cannot be said to be devoid of requisite
permission for laying down the transmission line.
9.4 In view of this Court, the respondents have no vested
right to seek alteration with regard to the alignment and
shifting of the route in view of the fact that the writ-applicant
is in receipt of all the requisite permission as required and the
Government has issued appropriate authorization in exercise of
powers vested under Section 68 of the Act, 2003 as also
Section 164 of the Act, 2003. The order passed by the Sub-
Divisional Magistrate, Deesa in Vijali Case No.1126 to 1134 of
2019 dated 30.3.2019 exercising powers under Section 16(1) of
the Telegraph Act whereby the respondent No.2 refused the
permission to the writ-applicant for laying down of 400 KV D/
C Soaja-Zerda line on D/C Tower with ACSR twin conductor
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from the land of respondent No.1 is required to be quashed
and set aside and the same is hereby quashed and set aside.
9.5 Having gone through the records as produced for
consideration of this Court it cannot be said that the deviation
with respect to the transmission line is considerable. As stated
by the writ-applicant the deviation is minimum i.e. 200 meters
which does not call for any interference with regard to the
laying down of the transmission line. Further the construction
of 95% out of the total work is completed and only 05
locations remains. Under such circumstances, the above
referred facts fortify the view of this Court that the writ-
applications are required to be allowed.
10. In view of above, all the writ-applications succeed and
the same are allowed to the aforesaid extent. Consequently the
civil applications stand disposed of.
(VAIBHAVI D. NANAVATI,J)
After pronouncement of the order Mr. Nishit P. Gandhi,
the learned advocate for the respondent No.1 has requested to
stay the order for four weeks. The request made by Mr.
Gandhi is declined.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
