Gujarat High Court
Shiroliya Punabhai Sagarambhai vs State Of Gujarat on 13 April, 2023
Bench: Vaibhavi D. Nanavati
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3042 of 2023
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 ?
==========================================================
SHIROLIYA PUNABHAI SAGARAMBHAI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS GAYATRIBA B JADEJA(5152) for the Petitioner(s) No. 1
MS NILAM N CHAUHAN(6635) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR SP HASURKAR(345) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 13/04/2023
ORAL JUDGMENT
1. By way of present writ-application the writ-applicant
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
herein has challenged the order No.J/MAG/ETA/Case No.18 of
2020 dated 22.3.2021 passed by the respondent No.3 allowing
the application filed by the respondent No.2 under Section 16
of the Indian Telegraph Act, 1985 and issuing certain
directions to the present writ-applicant herein.
2. Brief facts leading to the filing of the present writ-
application read thus :-
2.1 The writ-applicant owns and occupies the agricultural
land bearing Survey No.62 P2 Admeasuring 16188 Sq. Mtrs.
and survey No.53 of P2 Admeasuring H are 0-89-03 Sq. Mtrs.
Moje: Navagam, Taluka: Jasdan, District:Rajkot.
2.2 It is the case of the writ-applicant that the respondent
no.2 proposes to erect an electric pole on the land of the writ-
applicant for the route of the electricity line for the project
without hearing the writ-applicant.
2.3 It is submitted that the main grievance of the other
farmers before the respondent No.3 was that despite there are
other route available nearby the land of the writ-applicant and
in the land of writ-applicant and though there is a straight line
route available in spite of above pole is being installed at
eastern side at Jasdan road. The respondent no.2 has not
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
chosen straight line and or other directions and chosen present
line passing from Jasdan road, which is not considered while
passing the impugned order by the respondent No.3 herein.
2.4 It is stated that the respondent no.2 vide application
dated 25.11.2020 preferred under Section 16 of the Indian
Telegraph Act, 1885 prayed to the respondent No.3 for
permission to erect electricity line. It transpires that the
respondent No.3 issued notice on 5.2.2021 and kept the
matter on 19.2.2021 for hearing. It is further stated that the
said notice was not served to the writ-applicant and the writ-
applicant was completely unaware about the proceedings
initiated by the respondent no.2 before the respondent no.3.
2.5 It is further stated that it was learnt that the respondent
No.3 passed the impugned order dated 22.3.2021. The writ-
applicant and his son personally went to the village and
inquired from the other villagers and nearby villagers and got
the case papers. Immediately on 10.02.2023 writ-applicant
made representation to the Collector, Rajkot that without
informing writ-applicant or notice or survey of land or hearing
the writ-applicant the respondent started digging and spoiling
his land upon requesting and restricting person on land and
threatened the writ-applicant but till date no reply is received
by the writ-applicant which resulted in reminding
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
representation dated 16.02.2023.
3. Being aggrieved and dissatisfied by the impugned Order
No.17 OF 2020.J/MAG/ETA/Case No.18 of 2020 dated
22.03.2021 passed by the respondent no.3 allowing the
respondent no.2's application under Section 16 of the Indian
Telegraph Act, 1985 and further directions issued by the
respondent No.3 herein the writ-applicant herein has
approached this Court by filing the present writ-application
and seeking the following reliefs :-
"(A) YOUR LORDSHIPS maybe pleased to admit this Special
Civil Application;
(B) YOUR LORDSHIPS may further be pleased to issue a
writ of mandamus or certiorari or any other appropriate Writ,
Order or direction in the nature of mandamus or certiorari
quashing and setting aside the impugned Order No.
J/MAG/ETA/Case No.17/2020 and No.18/2020 dated
22.03.2021 passed by the respondent no.3 (ANNEXURE "A")
and may further be pleased to direct the respondent no.2 and
or its agents not to erect the electric lines and polls in the
farm of the petitioner;
(C) Pending admission, hearing and final disposal of the
petition, YOUR LORDSHIPS may be pleased to stay the further
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
execution, operation, implementation and effect of the
impugned Order No.J/MAG/ETA/Case No.17/2020 and
No.18/2020 dated 22.03.2021 passed by the respondent no.3
(ANNEXURE "A") and may further be pleased to direct the
respondent no.2 and or its agents not to erect the electric
lines and polls in the farms of the petitioner till the final
disposal of this petition;
(D) Such other and further relief which this Hon'ble Court
may deem fit to be granted in the interest of justice;"
4. Heard Ms. Nilam N. Chauhan, the learned advocate
appearing for the writ-applicant, Mr. S. P. Haruskar, the
learned advocate appearing for respondent No.2 and Mr.
Trupesh Kathiriya, the learned advocate appearing for the
respondent No.1 - State.
Submissions on behalf of the writ-applicant :-
5. Ms. Nilam N. Chauhan, the learned advocate appearing
for the writ-applicant placed reliance on the facts as stated and
referred above and submitted that the impugned order dated
22.03.2021 as referred above is in violation of the principles of
natural justice. It was submitted that the writ-applicant was
not served with the notice of the proceedings before the
respondent no.3 as stated above and being completely unaware
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
about the proceedings the order impugned is in gross violation
of the principles of natural justice and the same is required to
be quashed and set aside.
5.1 It was submitted that the impugned order came to be
mainly on the ground that the aspect of least damage has to
be considered and that since the laying down on the line
involves public interest, the same cannot be interfered with. It
is observed that there does not appear to be any observation
with regard to how the principle of least damage has been
followed, more particularly, when an alternative shorter route
of laying of line is available.
5.2 Placing reliance on the aforesaid submissions it was
submitted that the respondent No.3 has not followed the
principle of least damage and also has not considered the
matter from the angle of giving preference to the alternate
straight route.
5.3 It was submitted that at present standing crop is
available in the field which is not allowed to be taken care of
by the respondent authority and most of the crop is spoiled.
Without considering the hardship, difficulty and financial
damages as well as agricultural damages to the writ-applicant
the respondent is erecting the poles by threatening the writ-
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
applicant.
5.4 It was submitted that the straight route of erecting
electric polls is available with the respondent no.2 and in that
route, most of the land is Government Waste land and very
few farmers would be affected. The present land is not
Government Waste land and in view thereof number of farmers
are affected.
5.5 It was submitted that present writ-application be allowed
and the impugned order passed by the respondent No.3
22.3.2021 be quashed and set aside.
5.6 Placing reliance on the aforesaid submissions, Ms.
Chauhan, the learned advocate placed reliance on the decision
in the case of Dilip Singh Chauhan versus Gujarat Energy
Nigam Limited reported in 2013 (34) GHJ 496 (paragraph
no.65).
Submissions on behalf of the respondent No.2 :-
6. Mr. S. P. Haruskar, the learned advocate appearing for
respondent No.2 placed reliance on the affidavit in reply filed
by the respondent No.2 herein and submitted as under :-
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
(a) It was submitted that the work is required to be
undertaken for construction and erection of 66 KV Ambaradi S/
S to 66 KV Khambala S/s Transmission line work to provide
quality supply to agriculture activities of agriculturist in nearby
area under Kisan Survoday Yojana. The said line is passing
though the land belonging to the Petitioner which is an
agriculture land situated at Survey No 62 of Village Navagam.
It was submitted that the respondent are laying down
transmission line exercising powers of Telegraph Authority as
envisaged under Section 10 to 16 of Indian Telegraph Act
1885 conferred upon them by Government of Gujarat under
Section 164 of The Electricity Act.
(b) The said line is being laid down after complying all
necessary formalities, permissions and there is no allegation of
the respondent that any mandatory provision of law is
violated. It was submitted that the respondent No.2 being State
Transmission Utility it is statutory duty to maintain efficient
and economic transmission network throughout the State of
Gujarat under the provisions of Section 39 of the Act, 2003.
(c) Mr. Hasurkar, the learned advocate placed reliance on
copy of Notification declaring GETCO as State Transmission
Utility which is approved by the Government under Section
68 of the Act of 2003.
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
(d) It was submitted that the petitioner uprooted the
foundation laid in the disputed land in police protection which
was after the order passed by the respondent No.3 - District
Magistrate.
Placing reliance on the aforesaid submissions it was
submitted that an F.I.R. is lodged against the petitioner on
21.2.2023 for damaging the public property and that the
petition is filed suppressing material facts. The petition be
dismissed in limine.
6.1 Reliance was placed on the further affidavit-in-reply filed
by the respondent No.2 which is duly produced at page-62,
wherein it was submitted that an affidavit is filed by the
authorized officer who served the notices to the petitioner
herein and it was submitted that the said officer had
personally served the copies of the notices upon the petitioner
which are duly produced at R6 Collectively.
6.2 It was further submitted that the contention of the
petitioner that no notice was was issued is far from truth in
view of the fact that the notice was issued upon the petitioner
on 20.11.2020 which is duly produced at R7.
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
6.3 It was submitted that the route of the line is decided and
approved by the competent authority after strenuous exercise
of checking and rechecking. Various factors like shortest route,
soil conditions, other line crossing, road crossings, river
crossing, proximity of airport, terrine condition, nearby rural
or urban habitat area, availability of clear corridor
throughout, avoiding angle towers and so on are taken into
consideration. Therefore there is hardly any scope to deviate
any line unless absolute necessary for technical reasons like
coming up for some construction meanwhile since there is
always time gap between finalizations of route and actual
executing erection line, mistake in survey report which seldom
occurs.
6.4 Placing reliance on the aforesaid submissions it was
submitted that it is not possible to undertake any change in
route once it is finalized after undertaking streneous efforts.
6.5 Mr. Hasurkar, the learned advocate submitted that this
court and the Hon'ble Supreme court has considered the
powers under Telegraph Authority which are conferred upon
transmission companies and the same are absolute and access
granted is unobstructed and placed reliance on the decision in
the case of Himmatbahi Patel V/s Deputy Engineer GETCO,
reported in 2011 GLH 781 and Power Grid Corporation v/s
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
Century mills reported 2017 5 SCC 134.
6.6 Mr. Hasurkar, the learned advocate also placed reliance
on judgment rendered in Letters Patent Appeal 534 of 2020,
date of order 6.11.2020, paragraph 58.16. Placing reliance on
the aforesaid it was submitted that the petition be dismissed in
limine.
7. Mr. Trupesh Kathiriya, the learned AGP appearing for
the respondent - State adopted the submissions advanced by
Mr. S. P. Hasurkar, the learned advocate appearing for the
respondent No.2 and submitted that the order passed by the
Additional District Magistrate, Rajkot dated 22.3.2021 is just
and proper and that the writ-application is required to be
dismissed.
8. Position of law :-
(A) The Hon'ble Division in the case of Gujarat State
Energy Transmission Corporation Ltd., vs. Ratilal Maganji
Brahmbhatt (Barot), reported in 2021 (4) Gujarat Law Reporter,
2642, in paragraphs 58.16, 58.17, 58.23, 58.27 and 58.29 held
thus :-
"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
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
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.
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
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
section of people and industrial establishments, etc., has to
be given weightage over private interest.
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.
58.27. 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.
58.29. The Electricity Act, 2003, is a progressive enactment,
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
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
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]"
The Hon'ble Division Bench in the above referred
judgment considered AIR 2011 (NOC) 405 (Guj.) and 2013 (34)
GHJ 496 relied upon by the learned advocates appearing for
the respective parties and held that by authorization in terms
of Section 164 of the Electricity Act, 2003 read with Section
16(1) of the Indian Telegraph Act, 1885 authorises the licensee
with all the powers of the Indian Telegraph Act including the
power to entertain any private project subject to condition that
as little damage possible be caused, to give adequate
compensation to the land owner. The Hon'ble Division Bench
held that once the technical feasibility of the project is
approved by the appropriate Government by issuing an order
under Section 164 of the Electricity Act, 2003, it is not open
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
for the land owner or person interested to shift the
realignment of the route. The Hon'ble Division Bench further
held that once the competent authority issuing authorization
under Section 164 of the Electricity Act, the licensee is
conferred with the power under Indian Telegraph Act, 1985 to
determine the property over which the lines are to pass or
poles are to be erected. The transmission company has all the
powers to decide the route and such decision is highly
specialized and technical. At the same time, the said decision
is unrelated to any specific land owner. Further it is reiterated
that the public interest in providing electricity to a larger
section of the people and industrial establishment etc., has to
be given weightage over the private interest.
(B) Further in the Special Civil Application No.14858 of
2019 in the case of Patel Vasudevbhai Hargovandas vs. District
Magistrate and Collector, by order dated 27.9.2019, paragraphs
13 to 16 reads thus :-
"13. In that view of the matter, as the petitioners at the
relevant point of time have not raised any objection when the
sanction was sought by the respondent Nos.2 and 3 for laying
down the transmission tower and necessary public
advertisement was also issued in the year 2015. However,
learned advocate for the petitioners submitted that such
advertisement was not issued as per principles laid down by
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
the Court in paragraph No.10(b) of the judgment rendered in
Letters Patent Appeal No.1104 of 2013 as stated hereinabove.
Be that as it may, the fact remain that no objections were
raised by the petitioners before the transmission line was
sanctioned and accordingly, the petitioners cannot raise any
objection with regard to the route of the transmission line in
proceedings under Section 16(1) of the Act.
14. In the case before Madras High Court also, the facts were
different to the effect that the authority did not take any
action or complied with the provision of Section 16(1) of the
Act by approaching District Magistrate and therefore, the
Court observed that there was illegal trespass over the
property under Article 300A of the Constitution of India
whereas, in the facts of the present case, the respondents
have approached the District Collector for taking permission
under Section 16(1) of the Act and therefore, it cannot be
said that the respondents have illegally trespassed in the
agricultural fields of the petitioners as the District Collector
has granted permission by using discretion vested in him
under Section 16(1) of the Act. In the case before Madras
High Court, the Court, inspite of finding that there is illegal
trespass, did not interfere because of the fact that the towers
were already erected and therefore, in the public interest, it
did not thought it fit to interfere or to give any direction to
the respondents, inspite of violation of Section 16(1) of the
Act. It would be fruitful to refer to the observation made by
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
the Madras High Court, in paragraph No.19 of the judgment
given in the case of D.Rajendran and others V/s Tamil Nadu
Electricity Board and others in W.A.No.1294 of 2017, which
reads as under:
"In the normal course we should have directed the
respondents to remove the tower erected by them without
following the procedure prescribed under Section 16(1) of
the Telegraph Act but now that the tower has been
erected and the high tension line has also been drawn, we
desist from doing so in public interest. At the same time,
we place on record the affidavit filed by the
Superintending Engineer of the 1st respondent Corporation
TANTRANSCO on record. We direct the respondents to
scrupulously follow the procedure prescribed under Section
16 of the Telegraph Act while erecting towers in future.
Any deviation or dereliction in following the procedure
prescribed under Section 16 in future de hors undertaking
given by the Corporation in the affidavit filed by the
Superintending Engineer today will be viewed seriously."
15. In the facts of the present case also, it is an admitted
position that majority of the transmission towers on the
sanctioned route of transmission line are already erected and
stringing is also done except agricultural field of the
petitioners and therefore, in the public interest also it would
be necessary to permit the respondents for laying down
towers as expeditiously as possible.
16. In view of the foregoing reasons, no interference is called
for in the impugned order while exercising the powers under
Articles 226 and 227 of the Constitution of India and
therefore, the present petition, being devoid of any merit, is
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
summarily dismissed. No orders as to cost."
Analysis :-
9. The writ-applicant herein is the owner and occupier of
the land bearing Survey No.62 P2 and is aggrieved by the
construction and erection of 66 KV Ambaradi S/S to 66 KV
Khambala S/s Transmission line work. The petitioner herein is
aggrieved mainly on the ground that;
(a) Transmission line in question is permitted by the District
Magistrate without considering alternative route.
(b) The transmission line in question is permitted by the
respondent No.3 without following the principles of natural
justice.
(c) The order passed by the respondent No.3 permitting
installation of the transmission line is passed without following
the ratio as laid down by this Court and the Hon'ble Supreme
Court and that the notices are not individually served to the
writ-applicant herein.
This Court is inclined to consider the aforesaid as under:-
10. The 66 KV Ambaradi S/S to 66 KV Khambala S/S
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
transmission line laid by the respondent No.2 in question is
designed and planned as per standard prescribed in
Transmission Manual. Though the said line is passing through
agricultural land, the same is in the straight direction as far as
possible considering the availability of the required clear
corridor.
10.1 In the facts of the present case the respondent
authority has exercised the powers under Section 164 of the
Electricity Act, 2003 for placing electric line for transmission of
electricity which confers upon the respondent authority powers
which the telegraph authority possesses under the Indian
Telegraph Act, 1885, with respect to placing of telegraphic line
and posts, on any public officer, licensee or any other person
engaged in the business of supplying electricity.
10.2 The respondent authorities are laying down transmission
line exercising powers under the telegraph authority as
envisaged under Sections 10 to 16 of the Indian Telegraph Act,
1885 conferred upon them by the Government of Gujarat under
Section 164 of the Electricity Act. Once such power is
conferred upon the respondent under Section 164 of the
Electricity Act, 2003, it is not open for the writ-applicant or
any other person interested to seek for shifting or realigning
the route on the premise that the District Collector cum
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
District Magistrate has powers to do so. The District
Magistrate has no power to alter any route or alignment except
to remove the difficulties faced by the licensee or person
authorised, pursuant to the orders issued under Section 164 of
the Act.
10.3 The writ-applicant was aware of the proceedings with
regard to the proceedings undertaken under Section 16 of the
Electricity Act by the Additional District Magistrate, Rajkot and
was informed about the hearing with regard to the proceedings
by the officer of the respondent No.2. This Court has
considered the notices produced at R6 collectively. The notice
issued by the respondent No.3 dated 24.2.2021 reflects the
name of the writ-applicant which appears at Serial No.16 with
the endorsement, "notice refused" (page-51), panch-rojkam is
also produced at page-52. The respondent No.3 issued further
notice on 15.3.2021 wherein the name of the writ-applicant
appears at Serial No.16 page-63. Individual notice is also
issued to the writ-applicant on 20.11.2020. The affidavit of
service of notice is also filed by the authorised officer of
respondent No.2 at page-62 which is perused by this Court.
The said affidavit states that the copy of notices which are
produced at R6 were personally served to the writ-applicant
herein. There is no reason for this Court not to accept the
aforesaid submissions by the Authorised Officer which is
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
deposed on affidavit.
11. At this stage, it is apposite to refer to Section 164 of
The Electricity Act and Rule 3 of the Works of License Rules,
2006 which read thus :-
"SECTION 164 : Exercise of powers of Telegraph Authority in
certain cases :- The Appropriate Government may, by order in
writing, for the placing of electric lines or electrical plant for
the transmission of electricity or for the purpose of telephonic
or telegraphic communications necessary for the proper co-
ordination of works, confer upon any public officer, licensee or
any other person engaged in the business of supplying
electricity under this Act, subject to such conditions and
restrictions, if any, as the Appropriate Government may think
fit to impose and to the provisions of the Indian Telegraph
Act, 1885 (13 of 1885), any of the powers which the telegraph
authority possesses under that Act with respect to the placing
of telegraph lines and posts for the purposes of a telegraph
established or maintained by the Government or to be so
established or maintained."
"Rule 3 : Licensee to carry out works.--
(1) A licensee may--
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
(a) carry out works, lay down or place any electric supply line
or other works in, through, or against, any building, or on,
over or under any land whereon, whereover or whereunder any
electric supply-line or works has not already been lawfully laid
down or placed by such licensee, with the prior consent of the
owner or occupier of any building or land;
(b) fix any support of overhead line or any stay or strut
required for the purpose of securing in position any support of
an overhead line on any building or land or having been so
fixed, may alter such support: Provided that in case where the
owner or occupier of the building or land raises objections in
respect of works to be carried out under this rule, the licensee
shall obtain permission in writing from the District Magistrate
or the Commissioner of Police or any other officer authorised
by the State Government in this behalf, for carrying out the
works: Provided further that if at any time, the owner or
occupier of any building or land on which any works have been
carried out or any support of an overhead line, stay or strut
has been fixed shows sufficient cause, the District Magistrate or
the Commissioner of Police, or the officer authorised may by
order in writing direct for any such works, support, stay or
strut to be removed or altered.
(2) When making an order under sub-rule (1), the District
Magistrate or the Commissioner of Police or the officer so
authorised, as the case may be, shall fix, after considering the
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
representations of the concerned persons, if any, the amount of
compensation or of annual rent, or of both, which should in his
opinion be paid by the licensee to the owner or occupier.
(3) Every order made by a District Magistrate or a
Commissioner of Police or an authorised officer under sub-rule
(1) shall be subject to revision by the Appropriate Commission.
(4) Nothing contained in this rule shall effect the powers
conferred upon any licensee under section 164 of the Act."
Rule 3(4) provides that once permission under Section
164 of the Act is granted by the Government, no personal
notice or consent is required. However, in the facts of the
present case as referred above personal notices were also
issued to the writ-applicant herein by the respondent No.3.
11. At this stage, the order passed by the respondent No.3
No.J/MAG/ETA/Case No.18 of 2020 dated 22.3.2021 which
reads thus :-
"Reg. A.D.
No. J/MAG/ETA/Case No.17/2020 The Collectorate,
Jilla Seva Sadan,
Shroff Road, Rajkot
Date: 22/03/2021
Subject: To grant permission to establish electric-line
under Section-16 of the Indian Telegraph Act,
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
1885.
The Executive Enginner, Construction Division
Office, The Gujarat Energy Transmission
Corporation Limited, Amreli
V/s.
The Agriculturists of Village: Navagam, Ta. Jasdan
mentioned in 'copy to' section of this order.
PREAMBLE :-
The work to establish Single Electric Line from 66 kv
Aambardi Sub-Station to 66 KV Khambhala Sub-Station as per
the Letter No. 20-21 / DN / A.M.R. / P.R.J. / 2352 dated
25/11/2020 of The Executive Engineer, (Construction) Division,
The Gujarat Energy Transmission Corporation (GETCO)
Limited, Amreli is under progress and presently, the work of
the said line is ongoing. About 38 Tower Locations are there
in the said line. Out of them, work of foundation of 21 tower
and work of erection of 18 tower has been completed. It is
required to complete the remaining work of the said line at
the earliest. The main objective of this project is to provide
high voltage continuity of power supply from the project to
the villages of Jasdan taluka of Rajkot district and Babra
taluka of Amreli district of the State of Gujarat.
Upon completion of the work of this line, high voltage
continuity of power supply from the project to the villages of
Jasdan taluka of Rajkot district and Babra taluka of Amreli
district of the State of Gujarat shall be maintained. This
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
project has been sanctioned by The Gujarat Energy
Transmission Corporation Limited as per the provisions of The
Indian Electricity Act, 2003, which has been approved by the
State Government and after publication of notification of the
said project, after detailed survey, The Gujarat Energy
Transmission Corporation Limited, Amreli has submitted
proposal to this office to grant permission as per Section-16 of
The Indian Telegraph Act, 1885 to establish the said electric
line.
Pursuant to the aforesaid proposal of the Executive
Engineer, Construction Division Office, The Gujarat Energy
Transmission Corporation Limited, Amreli; the claimants
mentioned in the 'copy to' section hereunder, who raised their
objections, were issued even numbered notice dated
05/02/2021 of this office for production of their objections
with documentary evidences and to remain present for personal
hearing and accordingly, they were directed for hearing and to
produce their documentary evidence over the objections before
this office on 19/02/2021. The Officers of GETCO remained
present on the said date and proof of service of the notice to
the account holders have been submitted. The account holders
did not remain present. Next date of 05/03/2021 was fixed
therein. The Officers of GETCO remained present on the said
date with proof of service of the notice to the account holders
on 05/03/2021. The account holders did not remain present.
Next date of 19/03/2021 was fixed therein. The Officers of
GETCO remained present on the said date with proof of service
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
of the notice to the account holders on 19/03/2021. The
account holders did not remain present. It was decided to keep
the case for order.
As the proposal submitted by the Executive Engineer,
GETCO, Amreli is development oriented and public interest
project of the government, the public interest work of the
government shall be stopped if the electricity is not provided
through the electric cable, therefore, it is requested to pass an
order permitting the work of laying the said line. In this
regard, GETCO shall go to the site in the area in question and
ensure that minimum damage is caused to the farmer and least
hurdle be caused mechanically and appropriate compensation
shall have to be granted as per prevailing rules for the damage
caused, if any. If the farmer sustains any damage due to the
the electric line, GETCO is ready to pay compensation for such
damage as per prevailing rules.
Perused Section-16(1) of the Indian Telegraph Act, 1885
in this case, which is as under:
Sec.16:- Exercise of Powers Conferred by Section-10, and
disputes as to compensation in case of property
other than that of a local authorities.
1. If the exercise of the powers mentioned in
Section-10 in respect of property referred to in
clause.
2. Of that section is resisted or obstructed, The
District Magistrate may, in his discretion, order
that the telegraph authority shall be permitted to
exercise them.
The Deputy Engineer, GETCO, Amreli remained present
on the date of case and made oral submission and accordingly,
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
the Gujarat Energy Transmission Corporation has initiated work
of present line to maintain the continuity of electric supply at
high electricity voltages. Moreover, continuous and sufficient
supply of electricity may be provided from this project for the
agriculture, so that the problem of low voltage can be resolved
permanently. This project has been sanctioned by the Gujarat
Energy Transmission Corporation and approved by the State
Government. It is significant project to provide very important
development related service and prior permission of the
concerned departments/offices have been obtained. After
publication of aforesaid notification of the said project, after
detailed survey, GETCO has initiated work. The work to
establish the aforesaid line according to its pre-determined
route and in a technically unobstructed manner, and the route
of electric line has already been determined by publication of
notification. The route so sanctioned and determined is very
short, straight, with required angles, economically less
expensive and less use of energy and the said project has been
approved by the State Government.
Therefore, following order is hereby passed in the
Proposal Case dated 25/11/2020 submitted by The Executive
Engineer, Construction Division Office, Gujarat Energy
Transmission Corporation Limited.
-: ORDER :-
Considering the public interest of the State as well as
the development of the State and Nation, in order to provide
electric supply to all the agriculturists regularly and with
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
sufficient voltage for the purpose of agriculture, causing
minimum damage to the lands of the agriculturists mentioned
in 'copy to' section and if technically possible, the electric
poles be installed at the edge of the farm of the claimants and
in this manner, permission is hereby granted to The Gujarat
Energy Transmission Corporation Limited, Amreli to establish
Single Electric Line from 66 kv Aambardi Sub-Station to 66 KV
Khambhala Sub-Station from its approved determined route in
the farms of the agriculturists of village: 'Navagam' of Jasdan
Taluka mentioned in 'copy to' section below by the power
conferred under Section-16 of the Indian Telegraph Act, 1885.
Disobedience of this order shall atract punishment
under Section-188 of the Indian Penal Code, 1860.
Adequate Compensation shall have to be granted as per
prevailing rules of the Government under Section-10(d) of the
Indian Telegraph Act against the damage to be caused to the
property owners - agriculturists due to installation of electric
line by the Gujarat Energy Transmission Corporation Limited.
The parties are hereby informed that if they are dissatisfied by
the compensation awarded by the Gujarat Energy Transmission
Corporation Limited, they can file an appeal under Section-
16(3) of the Indian Telegraph Act before the Hon'ble District
Court.
Issued today on 22/03/2021 with my signature and seal
of the Office.
Round Seal of The Office of Sd/- (Illegible)
the District Magistrate, (P.B. Pandya)
Rajkot District, Gujarat State Additional District Magistrate
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
Rajkot District"
12. Considering the aforesaid provisions as referred above
and position of law as referred above, in the opinion of this
Court the respondent authority has followed the due process of
law in accordance with the ratio as laid down in the case of
Gujarat State Energy Transmission Corporation Ltd., vs. Ratilal
Maganji Brahmbhatt (Barot), reported in 2021 (4) Gujarat Law
Reporter, 2642.
12.1 In the aforesaid set of facts and position of law as
referred above, no interference is called for in the impugned
order passed by the Additional District Magistrate, Rajkot dated
22.3.2021 in No.J/MAG/ETA/Case No.18 of 2020 in allowing
the application filed by the respondent No.2 herein under
Section 16(1) of the Indian Telegraph Act in view of the
following :-
While passing the impugned order the respondent No.2
appears to have considered the following :-
(a) The work of the aforesaid transmission line is on going.
(b) Out of 38 tower locations, work of foundation of 28
towers and work of erection of 18 towers have been completed
and the remaining work is required to be completed at the
earliest.
(c) The main objective of the project is to provide high-
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
voltage continuity of power supply from the project to the
villages of Jasdan Taluka of Rajkot District and Babra Taluka
of Amreli District of State of Gujarat.
(d) The aforesaid project has been sanctioned by the Gujarat
Energy Transmission Corporation Ltd., as per the provisions of
the Indian Electricity Act, 2003 which has been approved by
the State Government and after publication of Notification of
the said project, after detailed survey, the Gujarat Energy
Transmission Corporation Ltd., Amreli has submitted the
proposal to the respondent No.3 for grant of permission under
Section 16 of the Telegraph Act to establish the said electricity
line.
(e) The persons who raised objections were issued even
numbered notice on 5.2.2021 by the respondent No.2 for
placing their objections with the documentary evidences and to
remain present for personal hearing and accordingly the
respective parties were directed to produce documentary
evidence over the objections before the respondent No.2 on or
before 9.2.2021. The officers of the GETCO remained present
on the said date with requisite proof of notice to the stake
holders/land owner. However, stake holders/land owner did
not remain present, therefore next date of hearing came to be
fixed on 5.3.2021 wherein the officers of the GETCO remained
present. However, the stake holders/land owner did not remain
present. Further date came to be fixed for hearing on
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
19.3.2021 wherein once again officer from the GETCO
remained present with requisite proof of service of notice to
the stake holders/land owner, however the stake holders/land
owner did not remain present.
(f) The proposal submitted by the Executive Engineer,
GETCO, Amreli is for the development and public interest
work of the Government cannot stopped if the electricity is not
provided through electric cable and, therefore, it was requested
to permit the work of laying down of the said line.
Considering the aforesaid the respondent No.2 allowed
the application filed by the writ-applicant herein under Section
16 of the Indian Telegraph Act by the impugned order dated
22.3.2021 with a further direction that the adequate
compensation be granted as per the prevailing rules of the
Government under Section 10D of the Indian Telegraph Act
against the damage that may be caused to the property owners
- agriculturist due to the installation of the electric line by the
Gujarat Energy Transmission Corporation Limited.
This Court has also considered the documents produced
on record and the order passed by the respondent No.2 as
referred above and considering the aforesaid aspects, no
interference is called for in the impugned order passed by the
respondent No.2 wherein the said order is passed considering
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
the fact that the line which is sought to be laid being single
electric line from 66 kv Aambardi Sub-Station to 66 KV
Khambhala Sub-Station as per the Letter No. 20-21 / DN /
A.M.R. / P.R.J. / 2352 dated 25.11.2020 of the Executive
Engineer (Construction Division) GERC is under progress. The
aforesaid project has been accorded due sanction by the
Gujarat Energy Transmission Corporation and approved by the
State Government prior permmission of the concerned
Department / Officers has been obtained. The aforesaid project
is also significant for development related to service. After
publication of the aforesaid notification the GETCO has
initiated the aforesaid work to establish the aforesaid line
according to its pre-determined Rule and in a technically
unobstructed manner the route of the electric line has been
determined on publication of notification. The route which is
sanctioned and determined appears to be short, straight and
with required angles. Though the said route passes through the
agriculture field of the writ-applicant herein, the route having
been sanctioned after following due procedure of law is not
amenable to change of route. This Court has also considered
the fact that out of 38 tower locations, work of foundation of
21 towers and work of erection of 18 towers is already
completed. Considering the aforesaid aspect and the fact that
though the respondent authority issued notice to the stake
holders/land owner on 5.2.2022 and adjourned the proceedings
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
from time to time on 9.2.2021, 5.3.2021 and 19.3.2021 the
stake holders/land owner chose not to remain present and the
respondent authority proceeded to pass the order impugned.
The aforesaid is undertaken for providing quality supply to
agriculture activities of agriculturist in nearby areas under
Kisan Survoday Yojana.
12.2 The writ-applicant herein has no vested right to seek
alteration with regard to alignment and shifting of route
considering the fact that the respondent No.2 herein is in
receipt of 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 and also in view of the fact that the
writ-applicant herein has invoked Article 226 of the
Constitution of India for the prayers as prayed for as referred
above having not filed objections to the aforesaid transmission
line in the application filed by the respondent No.2 under
Section 16 of the Act before the Additional District Magistrate,
Rajkot in No.J/MAG/ETA/Case No.18 of 2020 on the ground
of non-issuance of notice to the writ-applicant herein and has
challenged the said order wherein the others have objected to
the aforesaid laying done of transmission line who have chosen
not to challenge the impugned order passed under Section 16
of the Indian Telegraph Act.
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
12.3 The order passed by the Additional District Magistrate,
Rajkot in No.J/MAG/ETA/Case No.18 of 2020 dated 22.3.2021
exercising powers under Section 16(1) of the Indian Telegraph
Act requires no interference is called for invoking
extraordinary jurisdiction of this Court under Article 226 of the
Constitution of India.
13. The aforesaid exercise is undertaken by the respondent
authority in public interest to provide electricity supply to all
the agriculturist regularly and with sufficient voltage for the
purpose of agriculture causing minimum damage to the fields
of the agriculturist taking into consideration the public interest
of the agriculturist by providing electric supply with sufficient
voltage.
14. In view of above, this Court is not inclined to grant the
prayers by exercising its extraordinary jurisdiction under
Articles 226 and 227 of the Constitution of India. Further no
error much less any error of jurisdiction can be said to have
been committed by the respondent authority while deciding the
application preferred by the respondent No.2, consequently no
interference is called for in the order No.J/MAG/ETA/Case
No.18 of 2020 dated 22.3.2021 passed by the respondent No.3.
Hence, the writ-application fails and the same is rejected.
C/SCA/3042/2023 JUDGMENT DATED: 13/04/2023
15. In view of above, the present writ-application stands
dismissed.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
