Mathakiya Ibrahim Amibhai vs State Of Gujarat
2023 Latest Caselaw 3221 Guj

     C/SCA/683/2023                               JUDGMENT DATED: 25/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 683 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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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 ?

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                      MATHAKIYA IBRAHIM AMIBHAI
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9
MR TRUPESH KATHIRIYA, AGP for the Respondent(s) No. 1
MR NV GANDHI(1693) for the Respondent(s) No. 4
MR SP HASURKAR(345) for the Respondent(s) No. 2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 25/04/2023

                            ORAL JUDGMENT

1. The present writ-application has been filed by the writ-

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applicants herein under Article 226 of the Constitution of India seeking following reliefs :-

     "(A)     To admit and allow this petition.


     (B)      To issue a writ of mandamus or a writ in the nature of

mandamus or any other appropriate writ, order or direction, quashing and setting aside the proposed diversion made by respondent nos.1 to 3 in the route alignment of 220 KV D/C Shapar Sub Station to 220 KV Ghiyawad Sub Station line on D/C Tower with AL59 Conductor with 24G OPGCL Cable passing from Chotila-Shapar to Ghiyavad by which instead of passing the 220KV line straight, the respondent nos.1 to 3 have proposed to lay line passing from the fields of petitioners from village Garida and village Samadhiyala, Taluka Vankaner, District Morbi for the reasons stated in the Memo of Petition and in the interest of justice.

(C) Pending admission, hearing and final disposal of this petition, be pleased to restrain the respondent nos. 1 to 3 from laying 220 KV D/C Shapar Sub Station to 220 KV Ghiyawad Sub Station line on D/C Tower with AL-59 Conductor with 24G OPGCL Cable passing from Chotila-Shapar to Ghiyavad from the fields of petitioners from village Garida and village Samadhiyala, Taluka Vankaner, District Morbi for the reasons stated in the Memo of Petition and in the interest of justice.

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(D) To grant ad-interim relief in terms of Para-49(c) hereinabove.

(E) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.

(F) To award the cost of this petition."

2. The brief facts leading to the filing of the present petition read thus :-

2.1 The writ-applicants herein are having agricultural lands at village Garida, Taluka Vankaner, District Morbi and village Samadhiyala, Taluka Vankaner, District Morbi. The writ- applicants herein are undertaking agricultural activities on their agricultural lands since years together.

2.2. The respondent nos.2 & 3 have proposed to erect of 220 KV D/C Shapar Sub Station to KV Ghiyawad Sub Station line on D/C Tower with AL-59 Conductor with 24G OPGCL Cable passing from Chotila-Shapar to Ghiyavad. The said line covers the writ-applicants' villages. The writ-applicants received notice from respondent no.3 intimating writ-applicants that respondent nos.2 & 3 will be erecting the said 220 KV line from the lands of writ-applicants.

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2.3 By way of the present writ-application, writ-applicants herein have challenged legality and validity of the said action of respondent nos. 1 to 3 who have diverted the 220 KV line known as of 220 KV D/C Shapar Sub Station to 220 KV Ghiyawad Sub Station line on D/C Tower with AL-59 Conductor with 24G OPGCL Cable passing from Chotila-Shapar to Ghiyavad by making sharp deviation in the alignment on account of political pressure and money pressure of respondent no.4, a Company owned and managed by Oreva Group of Companies. The respondent no.4 has been allotted 168 acres of land by the Government of Gujarat from government waste land of village Garida, Taluka Vankaner, District Morbi for the purpose of setting up Tourism Project and thereby respondent nos.1 to 3 have shifted the line on the application made by respondent no.4 on 4.2.2022 and now the line in question will travel 11 Km passing from agricultural lands of village Garida and Samadhiyala and, therefore, writ-applicants herein have challenged legality and validity of the action of respondent nos.1 to 3 who have made change in the alignment of the 220 KV line under the pressure of respondent no.4 at the cost of poor agriculturists.

3. Heard Mr. B. T. Rao, the learned advocate appearing for the writ-applicants, Mr. S. P. Hasurkar, the learned advocate appearing for the respondents No.2 and 3, Mr. N. V. Gandhi,

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the learned advocate appearing for the respondent No.4 and Mr. Trupesh Kathiriya, the learned AGP appearing for the respondent No.1 - State.

Submissions on behalf of the writ-applicants :-

4. Mr. B. T. Rao, the learned advocate mainly submitted that the writ-applicants herein are agriculturists and undertaking agricultural activities in the aforesaid lands. The writ-applicants herein have approached this Court on issuance of notices by the respondent no.3 in the newspapers on 18.2.2021 and then individual notices on 23.12.2022 whereby respondent nos. 1 to 3 have proposed to erect 220 KV line and erect poles in the fields of the writ-applicants though normally line has to be straight and there cannot be any diversion in the said line.

4.1 It was submitted that the respondent No.4 herein addressed a letter to the Executive Engineer, Division Office, GETCO, Morbi and informed that they are not giving permission for erection of the line from their land. The said communication was forwarded to the respondent No.2. It was submitted that the respondent No.4 herein preferred a representation to the Collector for allotment of 415 hectors of land of village Garida. The same was passed by the Garida

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Gram Panchayat on various grounds.

4.2 The respondent no.4 has acquired small piece of land near and around Garida Irrigation Tank-Talav. It was mainly submitted that the respondent No.4 is a influential person and, therefore, the objections raised by the respondent No.4 came to be considered and the line in question came to be deviated and the said line is now passing through the agriculture fields of the writ-applicants herein.

4.3 Mr. Rao, the learned advocate placed reliance on map Annexure-G which was obtained of Vankaner Taluka which demonstrates that the line passes straight and how the line has been diverted and its alignment has been changed. It was submitted that by this change of alignment of land instead of 02 kilometers now the respondents No.2 and 3 proposed to erect 11 kilometers line just to favour the respondent No.4.

4.4 It was submitted that the writ-applicant No.1 preferred an application on 17.12.2022 under RTI Act and demanded various documents and map. The said information is still not available to the writ-applicants herein. It was submitted that the impugned notices issued to the writ-applicants herein proposes change of alignment and there are at least 50 farmers from whose agricultural lands would be affected by passing of

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220 KV line.

4.5 It was submitted that in the facts of the present case powers under Article 226 of the Constitution of the India be exercised in view of the fact that there is clear case of victimisation and illegal use of powers by respondent nos.1 to 3 at the behest of respondent no.4, more particularly considering the fact that no line can be laid in such a way and normally and ideally line should be in a straight line only. However the change of route and alignment has been done by the respondent nos. 1 to 3 after the letter dated 4.2.2022 at the instance of the respondent no.4. Placing reliance on the same it was submitted that the route in question is changed/alignment is changed/ there is a diversion at the instance of letter written by the respondent No.4.

4.6 It was submitted that if transmission line is laid in a straight line, then only 2-3 poles would be required to be erected on the boundary of the land of the respondent No.4 and remaining poles will be erected in the Government waste land. It was submitted that the powers vested under the respondent authority under Section 164 of the Electricity Act, 2003 and Indian Telegraph Act cannot be exercised to facilitate one private party.

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4.7 It was submitted that to facilitate the respondent No.4 who is influential person, before changing the route and alignment of 220 KV line the respondent authorities have failed to follow the procedure established by law. Merely because the authorities have powers under Section 164 of the Electricity Act and Indian Telegraph Act, the said power cannot be used to deprive the poor agriculturists of their lands by laying down HT line from their fields to benefit one person.

4.8 Placing reliance on the aforesaid submissions it was submitted that present petition be allowed by exercising extraordinary jurisdiction under Article 226 of the Constitution of India and by setting aside the proposed diversion by the respondents No.1 to 3 in the aforesaid route by which instead of passing the 220 KV line straight the respondents No.1 to 3 have proposed to lay down line passing from the fields of writ- applicants from village Garida and village Samadhiyala, Taluka Vankaner, District Morbi for the submissions as stated above.

Submissions on behalf of the respondents No.2 and 3 :-

5. Heard Mr. S. P. Hasurkar, the learned advocate appearing for the respondents No.2 and 3. Mr. Hasurkar, the learned advocate placed reliance on the affidavit-in-reply filed by the respondent authority. Mr. Hasurkar, the learned advocate at

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the outset submitted that the 220 KV D/C-Shapar to Ghiyawad Sub-station, transmission line is of 42.36 kms., at the cost of Rs.3650.66 lakhs.

5.1 It was submitted that the writ-applicants herein have levelled manifold allegations with regard to shifting of line at the instance of the respondent No.4 and reliance is placed upon the letter dated 4.2.2022. It was submitted that the line in question is not shifted at all. The line is being laid down as per the original route approved by the competent authority. It was submitted that the line is not diverted for favouring the respondent No.4. It was submitted that the line in question is being laid for the public at large under the Kisan Sarvoday Yojana for strengthening the existing interstate transmission network, to promote agriculture activities in the near by areas. It was submitted that the respondent being State transmission utility (STU) under Section 39 of the Electricity Act envisaged it is duty bound to provide connectivity and economical transmission network through out the State.

5.2 Mr. Hasurkar, the learned advocate relied on the notification declaring Gujarat Energy Transmission (GETCO) as State Transmission Utility (STU) which is duly produced at R1. It was submitted that in discharge of duty as STU the respondent GETCO and its officers are conferred with the

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powers of Telegraph Authority as envisaged in Section 164 of the Act, 2003 read with Sections 10 to 16 of the Indian Telegraph Act, 1885. Reliance was placed on said notification duly produced at Annexure-R2.

5.3 It was submitted that for the line in question Government of Gujarat granted prior approval envisaged under Section 68 of the Act, 2003 on 27.5.2019. The said approval relied upon which is duly produced at Annexure-R3. It was submitted that on 11.2.2021 notification of line was published in the official Gazette indicating it is passing through the area around and between villages mentioned in the said notification. It was submitted that the notification is duly annexed at Annexure-A to the petition. After publication in the Gazette drawing of line is approved by the Electrical Inspector which is duly produced at Annexure-R4.

5.4 It was submitted that the approval line is entire blue print of the line, is final and as a matter of thumb rule after except for minor changes on the said spot as per the requirement, no major deviation is made except for technical reasons. One of the technical reason is due to mistake in original survey or if subsequent development taken place in the route, if the line is delayed for some reason. It was submitted that in the facts of the present case, there is no deviation of

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line so far as land of present writ-applicants is concerned. There is some minor deviation but that has taken place in the land at other place and which is not subject land through which the aforesaid transmission line is passing through.

5.5 Mr. Hasurkar, the learned advocate submitted that the contention raised by the writ-applicants that the aforesaid line is deviated to favour the respondent No.4 is not true in view of the fact that sharp turn has been taken in laying down of the said line to avoid the land of tourism project of the respondent No.4. The map of the line superimposed on map of the land of the writ-applicants is prepared specially looking to the contention of the writ-applicants. The said map was relied upon by Mr. Hasurkar, the learned advocate appearing for the respondents No.2 and 3 is duly produced at Annexure-R5.

5.6 Placing reliance on the said map it was submitted that by and large all the transmission lines are designed by following the due procedure. However, in the facts of the present case, the route of the said transmission line is not changed at all.

5.7 Mr. Hasurkar, the learned advocate submitted that the writ-applicants' contention that there is deviation made to favour the respondent No.4 is an allegation which is not sustainable and, therefore, no interference is called for in

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exercising extraordinary jurisdiction under Article 226 of the Constitution of India and the petition be dismissed.

5.8 It was submitted that the project being a public importance effective time for implementation of the project depend upon its timely completion. Any delay will cause recurring damages to the said project which cannot be compensated in terms of money.

Submissions on behalf of the respondent No.4 :-

6. Heard Mr. N. V. Gandhi, the learned advocate appearing for the respondent No.4. Placing reliance on the affidavit-in- reply duly filed Mr. Gandhi, the learned advocate submitted that it is alleged by the writ-applicants herein placing reliance on the letter dated 4.2.2022 that in view of the objections filed by the respondent No.4 herein the route of the said transmission line is changed. Mr. Gandhi, the learned advocate also controverted the contentions raised and relied upon by the writ-applicants herein placing reliance on the proceedings wherein the writ-applicants herein have relied on the proceedings of the Special Civil Application No.12020 of 2009 and order dated 12.1.2013.

6.1 Mr. Gandhi, the learned advocate also submitted that an

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attempt is false made by the writ-applicants to connect the recent incident to the repairing and renovation of Morbi Hanging Bridge and the incident thereof in support of their submissions.

6.2 Mr. Gandhi, the learned advocate appearing for the respondent No.4 submitted that while survey was being carried out by the officers of the respondents No.2 and 3 the writ- applicants herein raised objections and having realized the same the respondents No.2 and 3 were only surveying to find out the suitable route for transmission of electricity line the respondent No.4 has not carried the matter any further.

6.3 It was submitted that no inference can be drawn from the letter dated 4.2.2022 duly produced at Annexure-F page-66 that the respondent No.4 herein is an influential Company and has impressed upon the respondents No.2 and 3 to deviate the transmission line from the land to the agricultural land owned by the writ-applicants herein.

6.4 Placing reliance on the aforesaid submissions Mr. Gandhi, the learned advocate submitted that the allegations leveled against the respondent No.4 are without any basis and more particularly in view of the fact that the route of the said transmission line in question was finalized in accordance with

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the rules and regulation of the Act i.e. the Electricity Act, 2003.

Analysis :-

7. Having heard the learned advocates appearing for the respective parties following emerge for consideration of this Court :-

7.1 The writ-applicants herein appear to be agriculturists from Village : Garida, Taluka : Vankaner, Dist. Morbi. The transmission line of 220 KV D/C Shapar Sub Station to KV Ghiyawad Sub Station line on D/C Tower with AL-59 Conductor with 24G OPGCL Cable passing from Chotila-Shapar to Ghiyavad (for short "transmission line") passes through the lands of the writ-applicants herein. The writ-applicants on receiving notice from the respondent No.2 intimating the writ- applicants that the respondents No.2 and 3 would be erecting the said transmission line have approached this Court by filing the present writ-application mainly on the ground that there is deviation in the alignment on account of political pressure and monetary pressure of the respondent No.4 which is a Company owned and managed by Oreva Group of Company.

7.2 It is further the case of the writ-applicants that the route has been deviated to favour the respondent No.4. It is also

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contended that if the said route would pass in the straight line only 2-3 poles would be erected on the boundary of the land of the respondent No.4 and remaining poles would be erected on the Government waste land. The respondent authorities to save the land of the respondent No.4 and erection of 2-3 poles, the respondent authority will be required to lay 11 kilometers of line instead of 02 kilometers line which would require erection of more poles and laying down of additional 09 kilometers line which would also result in huge expenditure for the respondent authority.

In the aforesaid background the following emerge for consideration of this Court :-

(a) Notification declaring GETCO as State Transmission Utility (STU) Annexure-R1 (page-106) issued by the State of Gujarat dated 29.5.2004 approved and envisaged under Section 68 of the Act granted on 27.5.2019 Annexure-R2 (page-118).

(b) Notification dated 11.2.2021 published in Official Gazette Annexure-A.

(c) Drawing of line approved by the Electrical Inspector Annexure-R4 (page-128). Considering the map produced at Annexure-R5, the said transmission line is approved after

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following due procedure of law.

(d) The Government Gazette dated 11.2.2021 Annexure-A page-30 includes erection of 220 KV transmission line at Serial No.40 i.e. 220 KV D/C Shapar Sub Station to 220 KV Ghiyawad Sub Station line on D/C Tower with AL-59 Conductor which includes area around and between Village Shapar includes Village Garida.

(e) Public notice issued in local daily 'Gujarat Samarch' Annexure-B dated 18.2.2021 as submitted by Mr. Rao, the learned advocate appearing for the writ-applicants in para-9 of the writ-application.

(f) Having gone through the documents duly produced on record while considering the map relied upon by Mr. Rao, the learned advocate appearing for the writ-applicants at page-68 and the map relied upon by Mr. Hasurkar, the learned advocate appearing for the respondents No.2 and 3 duly produced at Annexure-R5 (page-135) it is required to be considered that, in the said line;

(i) marked portion in red circle indicate the land of the writ- applicants and those in black circle are marked as waste land.

(ii) The portion in green strip is forest land.

(iii) There is a wide gap immediately after the forest area

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which is required to be avoided because the same is hilly area and the portion in red strip belongs to the respondent No.4.

66 KV line is passing in between the area on the Location No.47/0 - 47A/0. Every line when it is to be crossed, it has to be crossed at 90 degree.

(iv) The line has taken turn from 47A location No.43/1, 44A/ 0, 45/0, 45A/0 46/0, 46B/0 46B/1, 49A/0 50/05 OA/0, 51/0 a 52/0 54/0, 54/1 55/0 are falling in Government waste land.

(v) There is a sub-station which is reflected in green and various lines are already coming in and going out of such sub- station. The said lines are required to be avoided. In such circumstances, the line is permitted to be taken in round aboutroute near sub-station. There are existing super-structures of masjid and residences parallel to the land of the respondent No.4.

(g) The correspondence by the respondent No.4 which is relied upon by the writ-applicants herein which is base that the transmission line is deviated on the basis of communication addressed by the respondent No.4 dated 4.2.2022 the said transmission line came to be finalized on 11.2.2021 after which the map came to be drawn and public advertisement came to be issued on 18.2.2021. Subsequent thereto there is no change in the said transmission line.

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(h) It appears that no objections came to be filed by the writ-applicants herein on issuance of public notice in Gujarati daily duly produced at Annexure-B dated 18.2.2021.

(i) Mr. Hasurkar, the learned advocate appearing for the respondent authority submitted that if the said transmission line would have been permitted to cross the land of the respondent No.4, the same would have passed through the forest land. At this stage, a communication from the Forest Authority is placed on record.

(j) From the aforesaid it further emerges as under :-

That as far as present line is concerned, it has six locations, out of which three locations are falling in the waste land, in Maseriya village sixteen locations are falling of which five are falling in waste land, in Samadhiyal village out of eleven locations seven are falling in waste land, in Mahika village two locations, both are falling in waste land, in Ratdiya village one location is falling in waste land, in Garida village out of fourteen locations eight are falling in waste land, in Holmadh village out of thirteen locations seven are falling in waste land, in Jalsika village out of ten locations seven are falling in waste land, in Ghiyavad out of ten locations three are falling in waste land. In all forty-three locations are falling

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in Government waste land or Gochar land and forty locations are passing through the private land. As on date, in the present line there are one hundred fifty locations out of which at eighty locations foundation is completed and at seventy locations erection is completed. So far as lands of writ- applicants are concerned, the same are falling in village Garida and Samadhiyal and substantial work has been undertaken in the aforesaid villages.

(k) It appears that the said transmission line has been undertaken after following the due process of law. Further there is statutory requirement under the Forest Conservation Act, 1980 which states that in view of the statutory requirement of the Forest Conservation Act, 1980 to avoid as far as possible the reserved and protected forest and wild life sanctuary were unavoidable to align the route so that cutting of trees is kept to be minimum.

(l) Mr. Rao, the learned advocate has placed on record an additional affidavit filed on behalf of the writ-applicants pursuant to the said documents produced by Mr. Hasurkar, the learned advocate appearing for the respondents No.2 and 3 wherein in para-12 it is contradicted by the learned advocate appearing for the writ-applicants herein that though there is forest, there are no big trees existing therein. There are only

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plants and maximum height of the plants is three feet and there is no question of any damage that would be caused to the forest or any hindrance due to the forest in laying the line from forest Government waste land. Placing reliance on the same it was submitted by the learned advocate appearing for the writ-applicants that what is stated by the respondent No.2 herein is incorrect and misleading.

Considering the aforesaid submissions advanced by the learned advocates appearing for the respective parties and having perused the communication dated 27.3.2023 which is placed on record by Mr. Hasurkar, the learned advocate appearing for the respondents No.2 and 3 the Survey Nos.155 and 158 in the said map has been certified by the Dy. Conservator of Forest by communication dated 27.3.2023 that :-

"In connection with the aforesaid subject it is to state that, to establish the under construction 220 KV Shapar Ghiyavad double power line (42.360 km) under the Kishan Suryodaya Yojana, the detail of the land of the Forest Department indicated by them in the map vide the reference letter are correct as per the map prepared by the Forest Settlement Officer. The same has been verified.

Further it is to state that, in addition to the above map, other S.Nos. are there at Village Garida and forest area. The details

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of the same are as below."

8. In the aforesaid sets of facts it is apposite to refer to the 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 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

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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.

58.23 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

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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, 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

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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 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.

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9. In view of above, consider the facts of the present case the discussion as referred above and the potion of law as referred above, this Court is inclined to pass the following order :-

In the opinion of this Court the respondent authorities have followed the due process of law in accordance with the ratio as laid down in 2021 (4) Gujarat Law Reporter, 2642. In the aforesaid facts and position of law as referred above, no interference is called for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Further the writ-applicants herein have no vested right to seek alteration with regard to the alignment and shifting of the route, considering the fact that the respondent No.2 herein is in receipt of requisite permission as required and the State Government has issued appropriate authorization in exercise of powers vested under Section 68 of the Act as also Section 164 of the Act and also in view of the fact that the writ-applicants herein have invoked Article 226 of the Constitution of India for the prayers as prayed for, as referred above and having not raised objections at the time when the public advertisement was issued in the daily newspaper which was for the purpose of raising objections.

10. While considering the facts of the present case, in the opinion of this Court there is no deviation as alleged by the

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learned advocate appearing for the writ-applicants herein after the said transmission line came to be approved. In absence of any deviation, the transmission line has been permitted to be laid down in accordance with law. It is also pertinent to note that the route which is prayed for by the writ-applicants herein which would otherwise pass through the forest area, as referred above the Forest Conservation Act clearly stipulates that there should be minimum usage of the said area and considering the same no interference is called for by invoking extraordinary jurisdiction under Article 226 of the Constitution of India. In the opinion of this Court, the said transmission line has been approved after following due process of law and the same cannot be deviated on submissions advanced by the learned advocate appearing for the writ-applicants on the ground of personal hardship that may be caused to the writ- applicants herein and the laying down of the transmission line is not required to be interfered with and directed to be deviated. If such contention would be accepted, the public interest for which the aforesaid transmission line of 220 KV D/ C Shapar Sub Station to KV Ghiyawad Sub Station line on D/C Tower with AL-59 Conductor with 24G OPGCL Cable passing from Chotila-Shapar to Ghiyavad would not be achieved. In the opinion of this Court, the writ-applicants herein have no vested right to seek either shifting of the alignment or shifting of the route inasmuch as the technical feasibility of the report

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of the project having been approved by the Government by issuing appropriate authorization in exercise of powers under Section 164 of the Electricity Act, 2003 no interference is called for to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. Further in absence of any malafide this Court deems it fit to accept the opinion of the expert.

11. This Court is also of the opinion that the aforesaid line is permitted to be drawn for the betterment of public at large. The same is of public importance and to see to it that by laying down of the aforesaid line under the Kisan Sarvoday Yojana for strengthening the existing inter-State transmission network and to promote the agriculture activities in the nearby area. Needless to say the aforesaid order is passed considering the statement made in the affidavit of Incharge Chief Engineer of the respondents No.2 and 3 that the line laid down is as per the original route approved by the competent authority and that there is no diversion to favour any industrialist and that different route has been permitted.

12. With the aforesaid reasons, the present writ-application stands dismissed.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED