Torrent Power Limited vs Collector And District ...
2023 Latest Caselaw 1565 Guj

     C/SCA/25785/2022                             JUDGMENT DATED: 15/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 25785 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1     Whether Reporters of Local Papers may be allowed             NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                      YES

3     Whether their Lordships wish to see the fair copy             NO
      of the judgment ?

4     Whether this case involves a substantial question             NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                       TORRENT POWER LIMITED
                                Versus
               COLLECTOR AND DISTRICT MAGISTRATE, PATAN
==========================================================
Appearance:
MR MIHIR THAKORE, SENIOR COUNSEL WITH MS AMRITA M
THAKORE(3208) for the Petitioner(s) No. 1
MR DEVDIP BRAHMBHATT(3490) for the Respondent(s) No. 3, 4,
10,11,12,13,14,15,5,6,7,8,9
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 15/02/2023

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Rohan Shah, learned

AGP appearing for respondent State and Mr. Devdip

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

Brahmbhatt, learned advocate appearing for the private

respondents waive service of notice of rule. Heard

learned advocates for the respective parties.

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

Constitution of India, the petitioner - Torrent Power

Limited has challenged the orders dated 12.10.2022 and

05.01.2023. By the order dated 12.10.2022, the

respondent no. 2 has, while exercising powers under

Section 16(3) of the Indian Telegraph Act, 1885 (for short

'the Telegraph Act') assessed the amount of

compensation that needs to be paid to the respondent nos

3 to 15 and vide order dated 05.01.2023, the petitioner

company has been refused protection sought by it under

Section 16(1) of the Telegraph Act.

3. Facts in brief are as under:

3.1 It is the case of the petitioner that it had been

awarded two solar projects, one of 100 MW capacity by

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

Gujarat Urja Vikas Nigam Limited and the other of 150

MW capacity by Torrent Power Limited - Distribution.

These projects involved construction of two solar plants

at Jakhotra and Babra. For the purposes of these

projects, it was necessary to supply overhead

transmission lines which were approximately over a

distance of 24.5 kms. These transmission lines as well as

a total of 80 transmission towers would have to pass

through the villages of Charanka, Aluvas, Patanka, Babra,

Bavarda Bakutra, Dhokavada, Barara and Jakhotra in

District Patan.

3.2 For the purposes of the project, therefore, the

petitioner approached the Government of Gujarat for

granting approval under sections 68 and 164 of the

Electricity Act, 2003 which approval was granted by the

State vide order dated 27.10.2021. The orders for each

of the projects respectively are annexed to the petition.

Having been entrusted with the powers under section 164

of the Electricity Act and therefore being invested with

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

the powers under the Telegraph Act, the petitioners on

17.12.2021 addressed a letter to the District Magistrate

and the Collector's office at Patan informing the

Collector's Office that having been conferred with powers

under sections 68 and 164 of the Electricity Act, the

projects needed to be implemented. That the lines were

to pass through the areas around the villages falling

within the jurisdiction of the Collector. They therefore

needed police protection and to see that there is no

obstruction at the site. One such letter was also

addressed to the authorities on 26.05.2022. It is the case

of the petitioner that when such permission was sought

for, the respondents no. 1 and 2 by the impugned orders

dated 12.10.2022 passed an order which tantamounted to

determining compensation which was otherwise within

the jurisdiction of the District Magistrate under section

16(3) of the Telegraph Act.

3.3 The order of 12.10.2022 is therefore challenged in a

petition which was initially filed and this court issued a

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

notice to the respondents by recording the submissions of

learned Senior Advocate Mr. Mihir Thakore on

19.12.2022. The order reads as under:

"Heard Mr. Mihir Thakore, learned Senior Advocate appearing with Ms. Amrita Thakore, learned advocate for the petitioner.

It appears that the petitioner having been authorized to lay down transmission lines under the Telegraph Act sought for permission to execute the project and an application was so made. By the impugned communication dated 12.10.2022, the Deputy Collector and Sub-Divisional Magistrate has assessed the amount of compensation effected land owners need to be paid.

Mr. Mihir Thakore, learned Senior Advocate would submit that under Section 16 of the Indian Telegraph Act, 1885, the Deputy Collector would have no authority to assess compensation inasmuch as under sub-section 3 of Section 16 of the Act, it is only the District Court which has jurisdiction to determine the sufficiency of compensation. Reading sub-section 3 of Section 10 of the Act, he would submit that it is for the petitioner to assess and pay compensation to the persons interested. He would further submit that the application dated 26.05.2022 essentially was for police protection.

Notice returnable on 09.01.2023. In the meantime, the compensation as per the assessment made out by the petitioner shall be deposited before the Deputy Collector. Further, before the

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

returnable date, the Deputy Collector shall decide the application in the context that it was so made. Direct service is permitted."

3.4 Thereafter, on 05.01.2023, the respondent Deputy

Collector has rejected the permission sought for under

the provisions of section 16(1) of the Telegraph Act which

is a subject matter of challenge in this petition.

4. Mr. Mihir Thakore, learned Senior Counsel

appearing with Ms. Amrita Thakore, learned advocate for

the petitioner company would submit that various

notifications have been issued by the Government of India

and Government of Gujarat for payment of compensation

towards damages in regard to the Right of Way in

transmission lines. The guidelines of 15.10.2015 set out

that compensation for tower base area impacted severely

due to installation of tower/pylon structure is payable at

the rate of 85% of land value based on Circle

rate/Guideline value/Stamp Act rates. By the government

order dated 14.08.2017 which was amended vide order

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

dated 31.12.2021, there is a methodology provided for

arriving at a figure of compensation that needs to be paid

to interested persons. The compensation based on these

yardsticks have been calculated and were payable to the

respondents. By the impugned order, the Deputy

Collector has no power to determine the compensation

under section 16(3) of the Telegraph Act and it is only the

District Magistrate who can determine such

compensation in the event the private respondents are

aggrieved by the amount awarded to them.

4.1 Mr. Thakore would submit that the compensation

was computed at the relevant point of time in accordance

with the guidelines to the tune of Rs.54,28,000/- to

several interested persons in the villages after the work.

He would submit that admittedly as is evident from

reading the notification of the Government of Gujarat

dated 27.10.2021, the petitioner company was authorized

in exercise of powers under section 164 of the Electricity

Act and therefore while exercising such powers, no

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

consent of the owner was necessary and once an

application was made to the competent authority under

the provisions of the Telegraph Act especially one under

section 16(1) of the Act, the only power that the authority

has is to see that the respondents no. 3 to 15 did not

obstruct in execution of the projects and the aspect of

determining the compensation as is evident from the

order was not within the purview of the Deputy Collector.

4.2 In support of his submissions, Mr. Thakore, learned

Senior Counsel relied on the following decisions:

(a) Power Grid Corporation of India Limited vs.

Century Textiles And Industries Limited and Others

reported in (2017) 5 SCC 143;

(b) Himmatbhai Vallabhbhai Patel vs. Chief Engineer

(Project) Gujarat Energy Transmission and Others

reported in (2011) 2 GLH 781;

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

(c) Jaisinh Parshottambhai Patel vs. Essar Power

Transmission reported in 2015 JX (Guj) 895;

(d) Gujarat State Energy Transmission Corporation

Limited vs. Ratilal Maganji Brahmbhatt (Barot)

reported in 2020 (4) GLR 2642;

(e) Harihar Buildspace Pvt. Ltd., Nagpur vs. Union

of India and Others reported in 2021(5) Mh.L.J. 144.

5. Mr. Devdip Brahmbhatt, learned advocate

appearing for the private respondents - the farmers

would submit that the learned District Magistrate/Sub-

Divisional Magistrate was well within his boundaries to

decide the compensation that needed to be awarded to

the private respondents. He would submit that if the

provisions of section 10(d) are read, what is evident is

that it was incumbent upon the telegraph authorities not

only to do as little damage as possible but also to see that

full compensation is paid to the persons interested. In

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

the facts of the case, he would submit therefore that the

private respondents are entitled to compensation by the

yardstick laid under the provisions of The Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short 'the

2013 Act').

5.1 Mr. Brahmbhatt would submit that in accordance

with the provisions of section 105(3), Schedule 4 of the

2013 Act sets out a schedule of list of enactments

regulating land acquisition, rehabilitation and

resettlement. The Electricity Act finds its place at Sr. No.

12 in the schedule. Inviting the court's attention to

schedule (1) of the Act, he would submit that the market

value of the land has to be determined in the manner

provided under section 26 of the Act and therefore in

accordance with the provisions thereof, the parameters

set out in that section of the 2013 Act need to be kept in

mind while assessing the amount of compensation that

had to be paid to the private respondents. He would

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

further submit that the provisions of section 10(d) of the

Telegraph Act are mandatory and payment of full

compensation therefore on the basis of the latest jantri

rate has to be paid and therefore the orders of the Deputy

Collector initially of 12.10.2022 cannot be faulted.

5.3 Mr. Brahmbhatt has relied on the decision of the

High Court of Andhra Pradesh in the case of Bala Balaji

Srinivasa Estates Private Limited vs. Union of India,

Ministry of Petroleum and Natural Gas and others

[2017 SCC OnLine Hyd 296], paras 17 & 18 thereof

and would submit that under the compensation Act of

2013 even when there is an acquisition of right of user of

land, as is evident from the listing of The Petroleum and

Minerals Pipeline (Acquisition of Right of User in Land)

Act, 1962 under the fourth schedule, the Andhra Pradesh

High Court opined that the compensation has to be in

accordance with the 2013 Act.

5.4 Mr. Brahmbhatt places reliance on the decision of

the High Court of Calcutta in case of Subal Chandra

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

Sikari vs. West Bengal State Electricity Distribution

Co. Ltd. and others reportd in 2019 SCC OnLine Cal

2899. Further, pressing into service the decision of the

Kerala High Court in the case of Rajan D vs. State of

Kerala and Others decided on 25.01.2020 rendered

in WP (C) Nos. 19446 with 27378 of 2019, he would

rely on the observations of the Kerala High Court wherein

too there was a question of the user of land under the

Telegraph Act and the Kerala High Court by relying on a

decision in the case of Kerala State Electricity Board

vs. Livisha and Others [(2007) 6 SCC 792 ] had in

para 17 opined that the provisions of the 2013 Act have to

be considered. He would invite the court's attention to

para 18 thereof where the court observed that for the

purposes of compensation, rehabilitation and

resettlement package, the provisions of Act 30 of 2013

have to be followed and simply because there is no land

acquisition in these cases, the contention that the Act is

not applicable was not accepted by the Kerala High

Court.

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

6. Mr. Rohan Shah, learned AGP appearing for the

State would read the orders impugned and submit that

such orders have been passed in accordance with the

powers so vested in the Deputy Collector and if it was

found by the Deputy Collector, while entertaining an

application under section 16(1) of the Telegraph Act, that

the compensation was not full compensation, which was a

mandatory requirement, the order that has been passed

by the Deputy Collector cannot be faulted. Accordingly, it

was within the powers of the Deputy Collector to pass the

impugned order dated 05.01.2023 by which permission to

execute the projects has been refused.

7. Having considered the submissions made by learned

advocates for the respective parties, it is necessary to set

out the provisions of the Electricity Act, 2003 relevant

for the consideration of the issue in the present petition

i.e. sections 68 and 164 which read as under:

68. Overhead lines

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

(1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2).

(2) The provisions contained in sub-section (1) shall not apply-(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;

(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or

(c) in such other cases, as may be prescribed.

(3) The Appropriate Government shall, while granting approval under sub-section (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary.

(4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.

(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree,

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

structure or object to be removed or otherwise dealt with as he or it thinks fit.

(6) When disposing of an application under sub- section (5), an Executive Magistrate or authority specified under that sub-section shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee. Explanation.-For the purposes of this section, the expression "tree" shall be deemed to include any shrub, hedge, jungle growth or other plant."

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 communication 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, 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.

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

7.1 Under section 68 of the Electricity Act, an overhead

line shall with the prior approval of the appropriate

government be installed or kept installed above the

ground in accordance with the provisions of sub-section

2. Section 164 of the Electricity Act provides that the

appropriate government, by an order in writing for the

placing of electric lines or electric plant for the

transmission of electricity, confer upon a licencee or any

other person engaged in the business of supplying

electricity, powers under the Telegraph Act with respect

to placing of telegraph lines and posts etc.

7.2 It is undisputed that the petitioner for the two

projects in question has been accorded approval by the

State by order dated 27.10.2021. Reading the order

would indicate that the petitioner is authorized with all

the relevant powers of the telegraph authority under the

Telegraph Act to place overhead lines etc. By virtue of

such powers under section 164 exercised by the State,

the petitioner had powers vested in it to maintain the

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

telegraph lines and posts. The relevant provisions under

the Telegraph Act namely Sections 10 & 16 read as

under:

10. Power for telegraph authority to place and maintain telegraph lines and posts. - The telegraph authority may, from time to time, place 27 Inserted by the Indian Telegraph (Amendment) Act, 2003. Act No. 8 of 2004, received the assent of the President on the 9 January, 2004, with retrospective effect from 1.4.2002 and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property: Provided that (a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the [Central Government], or to be so established or maintained;

(b) the [Central Government] shall not acquire any right other than that of user only in the property under, over, along, across in or upon which the telegraph authority places any telegraph line or post; and (c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and (d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

damage sustained by them by reason of the exercise of those powers.

16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority

(1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) 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.

(2) If, after the making of an order under sub- section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code.

(3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.

(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.

(5) Every determination of a dispute by a District Judge under sub-section (3) or sub-section (4) shall be final :

Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same.

7.3 Having been vested with such powers under sections

68 and 164 of the Electricity Act, for the purposes of

executing the projects and so as to see that there is no

obstruction to their officers in entering into the lands in

question, permission was sought for by the petitioner by

making an application to the respondents no. 1 & 2 under

Section 16(1) of the Telegraph Act.

8. These provisions came up for consideration before

the Division Bench of this court in the case of Dilip

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

Singh Chauhan vs. Gujarat Urja Vikas Nigam

Limited in Special Civil Application No. 18334 of

2011 and allied petitions. The judgement was rendered

on 29.08.2013. Before the Division Bench, the provisions

of the Telegraph Act and the Electricity Act were set out

in detail and the Division Bench held that on a conjoint

reading of these sections, the telegraph authority under

section 10(d) of the Telegraph Act had the power to lay

down lines with the mandate that it will do as little

damage as possible, pay full compensation to persons

interested, the owner or the occupier will have the right

to resist or obstruct the power. In the case of resistance

or obstruction by the occupier the authorities would have

to approach the District Magistrate for an order under

section 16(1). The court further observed that the

District Magistrate while exercising power under Section

16(1) has to exercise discretion for passing the order

permitting the exercise of power; if there is any dispute

arises for sufficiency of compensation, either party has

right to make application before the District Judge; the

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

District Judge has to finalize the amount of compensation

payable by the authority i.e. the Telegraph Act, in this

case petitioner, to the owner or occupier. Para 30 of the

judgement of the Division Bench reads as under:

"30. The conjoint reading of Section 10 read with Section 16 shows that the Telegraph Authority or the authority so clothed with the power of the Telegraph authority under the Act will lay down the lines with the following mandate of the statute; (1) Do as little damage as possible; (2) Pay full compensation to all persons interested for the damage sustained by them by the reason of exercise of power; (3) owner or occupier will have right to resist or obstruct the exercise of power under Section 10(d); (4) In case of resistance or obstruction by the owner or occupier, the authority has to approach before the District Magistrate for order under Section 16(1); (5) The District Magistrate while exercising power under Section 16(1) has to exercise discretion for passing the order permitting the exercise of power; (6) If there is any dispute arises for sufficiency of compensation, either party has right to make application before the District Judge; (7) The District Judge has to finalize the amount of compensation payable by the authority to the owner or occupier."

8.1 After analysing the provisions of Section 164 of the

Electricity Act and the scope of the provisions of section

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

10(d), especially in the context of interpretation of words

'authority to do as little damage as possible" and "full

compensation", the Division Bench in paras 58 to 61 held

as under:

"58. As per Section 164 of the Act the power under the Indian Telegraph Act as that of the Telegraph Authority in respect of placing of the telegraph lines and posts for the purpose of telegraph established or maintained by the Government or to be so established or maintained, can be so conferred upon any public officer or licensee or any other person engaged in the business of supplying electricity under the Act by appropriate Government. Therefore, we need to consider the scope and ambit of the power and the obligation as that of the Telegraph Authority.

59. As per Section 10(d) there are two mandatory requirements; (1) Telegraph Authority shall do as little damage as possible; and (2) to pay full compensation to all persons interested for the damage sustained by them by the reasons of the exercise of those powers. The next aspect is what will be the scope of as little damage as possible and what will be the scope of full compensation. Before we address on the said aspect, it will not be out of place to mention that Indian Telegraph Act came to be enacted in the year 1885, much prior to not only Independence of our country, but could rather be th said as the law enacted in 19 Century. There are far more development not only in the rights of the citizens, but also in the obligation and the way of

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

discharge of duty by the authority and more particularly, after the Constitution has come into force in the country. Further, there are far more development of science, the method and way of enjoyment of the properties by the citizens and so is for various scientific method developed for laying down the lines. Telegraph lines are by now outdated on the date when we are to pronounce the judgement and they are to be substituted for the electricity lines. Therefore, we need to keep in mind the said aspect too. As against the same, the Act of 2003 and more particularly Section 164 of st the Act are the laws of 21 Century. At the first brush we may say that by the laws of st 21 Century i.e. Electricity Act, the power so th conferred by the Act of 19 Century are st continued. If the Act of 21 Century providing the method and mechanism under Section 67 of the Act read with the Rules of 2006 are considered, it does require the consent of the owner and also in absence of the consent, if the Police Commissioner or the Magistrate is to grant permission simultaneous assessment of the compensation and the payment thereof subject to revisional power by appropriate Commission, whereas the mechanism so provided under the Telegraph Act is different, but while interpreting the provisions of the Telegraph Act for exercise of the power by any person as that of the Telegraph Act for laying down of the lines of electricity we need to keep in mind the rights and obligations so prevailing in st 21 Century and it cannot be as that of th 19 Century when the position of the country, including the development in the society and the science was far behind.

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

60. We may now further proceed to examine the matter, keeping in view the aforesaid backgrounds:-

(a) The interpretation of the words authority shall do as little damage as possible.

As such the language itself is clear for showing that the obligation is cast upon the authority to do as little damage as possible. Therefore, attempt on the part of the authority shall be to minimal damage, taking into consideration the whole scheme of laying down of the line. As per the provisions of the Act when the licensee is to lay down the lines for supply or transmission or even for maintenance of electricity generating power station, approval is to be granted by the competent authority or the appropriate Government, as the case may be. Therefore, while granting approval the competent authority or the appropriate Government, as the case may be, would discharge the duty objectively, taking into consideration the larger public interest. Even after the approval is so granted, the attempt on the part of the authority would be to do least damage or as little damage as possible. Such would include that the authority shall not lay down the line over the property of owner or occupier unless it is genuinely required and the lines shall be organized in a manner, which will result into least possible damage. Further, if any change is possible in the line without disturbing, the main object of passing of electricity, the same shall also be taken into consideration. We make it clear that it would not mean that the owner or occupier will have a right for adjudication against the decision of the Electricity Company, more particularly because his suggestion is not accepted for alternative way or that non-acceptance of suggestion of the owner or occupier would give a cause in the Court of law.

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

But the obligation so created by the statute upon the authority to do as little damage as possible should be discharged with the expertise knowledge, keeping in view the objective purpose of safety, the curtailment of the rights of the owner or occupier for the enjoyment of the property and the necessity to lay down the line. If the laying down of the line in spite of the apparent, alternative way available on the face of it, is insisted by the authority, it may not meet with the test of as little damage as possible, but if after taking into consideration of the aforesaid aspect an objective decision is taken to lay down the line over the property of the owner or occupier such would be permissible and it can be said that the obligation to do as little damage as possible is sufficiently discharged.

(b) Authority shall pay full compensation to all interested by the reason of exercise of the power

The language itself is apparent, inasmuch as the obligation is so created for payment of full compensation. There would be various methods of assessment of the compensation, but unless it is identified that what damage is sustained, it may not be possible to assess the compensation. Therefore, the words any damage is required to be interpreted to mean all type of damage. If the land is an agricultural land, the actual occupation of the area for construction of tower is one type of damage, whereas the right curtailed of the owner or occupier to utilize the land for agriculture is another type of damage. If there is exclusive occupation for construction of tower, the damage can be said to be to the fullest extent, since no rights whatsoever remains with the owner to enjoy the property, whereas if the use is permissible in

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

part, there may be damage to that extent to the rights of the owner or occupier for enjoyment of the property. Further, if it is an agricultural land in the peripheral area or nearby area of city it will have the potentiality for non-agricultural use and even if the towers are not constructed, but only overhead line is installed, such may result into curtailment of the rights of the owner or occupier of the property to the fullest extent. In the same manner, if on account of the construction of the tower or laying down of the lines, including overhead lines, the actual construction or utilization of the line by making any type of construction is not permissible as per the laws of the local authority, such would also result into a damage to the rights of the owner or occupier. The same principles would apply with more vigor in a case where the line is already located in the urban area or the urban agglomeration or within the area of the local authority, municipality or corporation, as the case may be.

61. It may be difficult for the electricity company to take out the basis of the valuation of the property, over which the lines are to be laid down or the powers are to be constructed, since the development in the respective area may vary from case to case. For example, an agricultural land in the remote village will have a different value in comparison to agricultural land in the city area for the land already used for non-agricultural purpose like residential, industries, etc., or the use of residential or industry, as may be permissible, etc. It may be that at the time when the Telegraph Act was enacted, no standard or basic yardstick for valuation of the land or the property was available, but as on today and even when the Act of 2003 came into force, the valuation is already made by

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

the State Government of all the areas for the purpose of stamp duty, which is popularly known as jantri valuation. It is possible that in every case Jantri Valuation may not reflect the correct market value of the land, but for the purpose of awarding of compensation at the first instance by the Electricity Company in capacity as the authority under the Telegraph Act can take the basis of the jantri valuation of the respective land. After considering the jantri valuation it may be examined as to whether there is full curtailment of the right of the owner or occupier or not. If the curtailment of the right of the owner or occupier if to the fullest extent, appropriate compensation based on jantri valuation can be fixed, whereas if the curtailment of the right of the owner or occupier over the land is lesser, a mode or mechanism may be required to be provided about the percentage of curtailment of right. The guiding factor can be by way of rental compensation for the deprivation of the property for a limited period. Further, if the deprivation is only in part, it can be considered percentage-wise namely; that if the use is permissible, may be by running with the risk of electricity in the nearby area, such may result into 30% curtailment of the right, whereas if the overhead line is passing through agricultural land located in the remote agricultural area, it may result into damage to 10% of the property, as against the same if line is passing over an agricultural land in an urban area located in the urban or nearby urban area, the potentiality can be said as lost to the extent of 50%. Of course, the aspect of the area covered by the overhead line with the measurement would be relevant while examining the actual damage to the owner or occupier. In our view, it may not be possible for this Court to lay down any standard yardstick for

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

assessment of the damages and consequently the compensation, but it is obligatory on the part of the Electricity Company to take into consideration the aforesaid aspect and thereafter, to quantify the amount of compensation and to simultaneously pay to the owner or occupier of the land can be considered as that of the jantri valuation and the assessment of the damage may be made based on the curtailment of the right of the owner or occupier on account of the laying down of the line. The aforesaid could be said as the basic requirement for exercise of the power by the authority for laying down of the line as per the Section 10(d) of the Act. If the mandatory requirement of causing as little damage as possible or payment of full compensation is not followed, the action may be rendered illegal."

8.2 Evident it is from the reading of these paragraphs of

the judgment of the Division Bench that as far as

jurisdiction of assessment of compensation was

concerned, the Division Bench categorically observed

that it fell within the domain of the District Judge. At this

stage, paragraphs 62 and 63 which deal with the aspect

of jurisdiction of the authorities under section 10(d) and

16(1) and 16(3) dealt with by the Division Bench read as

under:

"62. However, the Act does not end there, but it further provides the other remedial measure as per Section 16 of the Act. Therefore, we may be now

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

required to examine the aspect of further exercise of power under Section 10(d). If Section 10(d) is read with Section 16(1), it is clear that the owner or occupier has a right to resist or obstruct. At the same time, it is in absence of any resistance or obstruction by the owner or occupier, the licensee as the Telegraph Authority may proceed to exercise the power of laying down of the line, but as observed earlier, even in absence of resistance or obstruction by the owner or occupier, the obligation will remain upon the licensee as the Telegraph Authority to do the least damage and to pay full compensation.

63. The next aspect may be required to be considered about the method of exercising of power under Section 10(d) read with Section 16(1) by the licensee as the Telegraph Authority. If prior notice is given to the owner or occupier, such would leave the room to the owner or occupier to shift any material lying over the land or the property, where the lines are to be laid. Further, it would also leave room to the owner or occupier to decide as to whether he wants to resist or obstruct the laying down of the line or not. By now it is well settled that the power, if any, are to be exercised under the statute by the authority by observance of principles of natural justice. The minimum observance of the principles of natural justice would call for at least a reasonable time to the owner or occupier before the action is taken by the licensee as the Telegraph Authority for laying down of the line. Therefore, it appears that minimum 15 days time should be given to the owner or occupier by the licensee as Telegraph Authority before starting of the work of laying down of the line.

However, such notice should expressly provide for

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

the area over which the line is to be passed or the tower is to be constructed and the amount of compensation to be paid to the owner or occupier for the damage. After receipt of such notice, if there is no resistance by the owner or occupier, the licensee as the Electricity Company may proceed, but has to simultaneously pay the compensation at the time when the line is laid down. However, if there is any resistance or obstruction raised by the owner or occupier, the licensee as the Telegraph Authority has to withdraw from the property of the owner or occupier and as per Section 16(1), the application shall be required to be made to the District Magistrate for grant of permission. The District Magistrate at the time when the permission is to be granted shall examine as to whether requirement of Section 10(d) are satisfied. Thereafter, he may grant permission to exercise the power. After the permission is so granted by the District Magistrate, the lincesee as the Telegraph Authority can proceed to lay down the line. Section 16(1) if considered and compared with Section 16(3) shows that the District Magistrate at the time when permission is to be granted under Section 16(1) has to examine the aspect of as little damage as possible, whereas on the aspect of sufficiency of compensation, the owner or the occupier has to resort to the proceedings under Section 16(3) before the learned District Judge. If the District Magistrate is satisfied that the aspect of little damage is satisfied, he may grant permission to the licensee as Telegraph Authority for laying down of the line, but if he is not satisfied on the aspect of little damage possible to the property of the owner or the occupier he may decline to grant permission. The language used under Section 16(1) is the permission may be granted by the District Magistrate in his discretion.

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

Since section provides for the language of the words his discretion and may, we find it proper to observe that the District Magistrate while exercising the discretion to grant permission should at least examine the aspect of little damage possible to the property of the owner or occupier, which is even otherwise also mandatory as per the requirement of Section 16(d) of the Act. We also find it proper to observe that the District Magistrate while exercising the discretion, should take into consideration the observations made by this Court in the present judgement for the requirement to satisfy the aspect of little damage possible. If the District Magistrate is satisfied on the aspect of as little damage as possible, he may grant permission. We may also state that the certain facets observed and discussed by us for considering the meaning of words little damage as possible are some of the instances and they may not be termed as exhaustive."

8.3 Reading the aforesaid relevant paragraphs of the

Act, what is borne out, therefore, is that the Division

Bench in no uncertain terms observed that the District

Magistrate under section 16(3) will have the jurisdiction

to decide the aspect of sufficiency of compensation. The

position of law was discussed by the Division Bench and

summarized in para 65 which reads as under:

"65. In view of the aforesaid observations and

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

discussion, following position of law can be deduced:-

(a) When any Electricity Company or its officers are delegated the power of the Telegraph Authority under the Telegraph Act by virtue of the notification issued by appropriate Government under Section 164 of the Act, such delegatee of the power is discharging the statutory function and, therefore, the writ petition under Article 226 of the Constitution is maintainable.

(b) Section 164 of the Act provides for a separate mode for laying down of electric line by conferment of power of the Telegraph Authority and if such powers are conferred upon any Electricity Company or its officers by appropriate Government, the power can be exercised as that of the Telegraph Authority under the Telegraph Act for laying down the lines.

(c) In absence of any specific delegation of power under Section 164 of the Act, the course available to the Electricity Company or its officers for laying down of the line is only under Section 67 of the Act read with the Rules of 2006.

(d) Non-availability of non-abstain clause under Section 164 of the Act would not result into curtailment of the operation of Section 164 of the Act, since a separate mode for conferment of power and consequently for laying down of the line is expressly provided by the statute. However, appropriate Government has to apply its wisdom, keeping in view the larger public interest as to whether it is a fit case to impose and confer the powers as that of the Telegraph Authority upon any licensee or any other persons engaged in the business of supplying electricity or any public officer or not. While exercising such power,

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

appropriate Government may provide for certain conditions and the restrictions to be observed.

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

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

(g) While exercising the power as that of the Telegraph Authority under the Telegraph Act, on account of the notification under Section 164 of the Act consent of the owner or occupier may not be required, but some reasonable prior intimation should be given to the owner or occupier, enabling

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

him to exercise his right to resist or obstruct, may be on the ground that the principles of least damage is not followed or may be on the ground that appropriate compensation is not paid or otherwise. The moment there is resistance or obstruction by the owner or occupier, the licensee has to stop his work, if any, or to withdraw from the property of the owner or the occupier. Thereafter, the licensee may approach before the District Magistrate for permission to lay down the line and the District Magistrate in exercise of the power may grant permission, but while granting permission, he may be required to examine the observance of the principles of little damage as possible and thereafter the permission may be granted. If permission is so granted by the District Magistrate, thereafter the owner or occupier cannot interfere in the work of laying down of the line unless the order of the District Magistrate granting permission is carried before the higher forum and any prohibitory order is passed by the competent forum or competent Court known to law. While granting permission under Section 16(1), the District Magistrate is not required to examine the aspect of sufficiency of compensation.

(h) If the compensation is paid under Section 10(d) and the owner or occupier finds that the compensation paid is not sufficient in comparison to the damage caused or otherwise, the owner or occupier has right to approach before the District Judge under Section 16(4), who has to finalize the amount of compensation to be paid by the licensee to the owner or occupier. The decision of the District Judge is final, but subject to further order of any higher forum known to law."

[Emphasis Supplied]

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

8.4 In the case of Power Grid Corporation of India

(supra), the Apex Court was considering the legality of

the directions given by the Division Bench of the high

court to the District Collector to work out compensation

that could be payable to the writ petitioner i.e. Century

Textiles and Industries Limited. The Power Grid

Corporation was aggrieved by the direction of the High

Court by which it referred the matter to the District

Collector for quantifying the compensation/ damages to

be paid to the writ petitioner and it was the submission of

the Power Grid that the High Court had no jurisdiction

nor had the District Collector the authority to decide the

issue of compensation. Discussing the provisions of

section 164 of the Electricity Act and setting out Rule 3 of

the 2003 rules and the provisions of Sections 10 and 15 of

the Telegraph Act, the Apex Court has held as under:

"20. In the instant case, the aforesaid Rule is not applicable in view of Section 164 of the Electricity Act, 2003, which reads as under:

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

"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."

21. It is not in dispute that in exercise of powers under the aforesaid provision, the Appropriate Government has conferred the powers of Telegraph Authority vide notification dated December 24, 2003 exercisable under Indian Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central Transmission Utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central Transmission Utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This coupled with the fact that Power Grid is treated as Authority under theIndian Telegraph Act, 1885, it acquires all such powers which are vested in a Telegraph Authority under the provisions of the Indian Telegraph Act, 1885 including power to

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Indian Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well- being/progress of the citizens. The legislature has not permitted any kind of impediment/ obstruction in achieving this objective and through the scheme of the Indian Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines.

22. Powers of the Telegraph Authority conferred by Sections 10, 15 and 16 of the Indian Telegraph Act, 1885, stand vested in and are enjoyed by the Power Grid. These provisions are reproduced below:

"10. Power for telegraph authority to place and maintain telegraph lines and posts.-- The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property:

Provided that--

(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and

(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and

(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause

(c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers." xx xx xx "15. Disputes between telegraph authority and local authority.-- (1) If any dispute arises between the telegraph authority and a local authority in consequence of the local authority refusing the permission referred to in section 10, clause (c), or prescribing any condition under section 12, or in consequence of the telegraph authority omitting to comply with a requisition made under section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the 1[Central Government] may appoint either generally or specially in this behalf. (2) An appeal from the determination of the officer so appointed shall lie to the Central Government; and the order of the Central Government shall be final."

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

"16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.-- (1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) 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.

(2) If, after the making of an order under sub- section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code, 1860 (45 of 1860). (3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.

(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.

(5) Every determination of a dispute by a District Judge under sub-section (3), or sub- section (4) shall be final: Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same..."

23. Section 10 of the Indian Telegraph Act, 1885 empowers the Telegraph Authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Indian Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Indian Telegraph Act, 1885 obliges the Telegraph Authority to ensure that it causes as little damage as possible and that the Telegraph Authority shall also be obliged to pay full compensation to all person interested for any damage sustained by them by reason of the exercise of those powers.

24. As Power Grid is given the powers of Telegraph Authority, Rule 3(1) of the Rules, 2006 ceases to apply in the case of Power Grid by virtue of execution clause contained in sub-rule (4) of Rule 3 which reads as under:

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

"3(4). - Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act."

25. We, thus, have no hesitation in rejecting the argument of the writ petitioner that the impugned action of the Power Grid was contrary to the provisions of the Electricity Act, 2003.

26. We also do not find that the action of the Power Grid, in the given circumstances, by not shifting the transmission lines was arbitrary. From the facts noted above, it becomes apparent that not only it was unfeasible to change the alignment as almost entire work had already been completed by the time the writ petitioner started protesting against this move, even otherwise, the Power Grid has given sufficient explanation to point out that all relevant factors/ aspects were kept in mind while laying down the impugned transmission lines. Such transmission lines had to be in straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity transmission is usually laid or crossed over agricultural land where minimum extent of land gets utilised for erecting towers and where agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds etc. while laying down these transmission lines. It is only when it becomes inevitable that towers are placed on the private lines to the minimum and least extent possible. That is what was tried to achieve in the instant case. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 mts. from the 400KV line (already existing) or the tower structure. Mining of limestone can be taken up by adopting the methods other than use of

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

explosive/blasting - without damage to the tower foundation/tower structure or the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damage to the line or tower. This aspect has also been taken note of by the learned Single Judge of the High Court in the judgment dated March 11, 2008. The Division Bench did not differ with any of these findings.

Accordingly, Civil Appeal No. 10953 of 2016 preferred by the writ petitioner stands dismissed.

27. At this stage, we deal with the direction of the Division Bench regarding compensation payable to the writ petitioner, or for that matter to the State Government. In the first instance, no such claim was laid by the writ petitioner in the writ petition or by the State Government before the High Court. Furthermore, the High Court could not have given this task to the District Collector, which is contrary to the provisions of Section 16(c) of the Indian Telegraph Act, 1885 which are extended to laying down of electricity lines. As per this provision, such an authority vests with the District Judge."

8.5 Reading of the judgment of the Apex Court, thus,

would indicate that it would also answer the submission

made by learned counsel for the respondent in the

context of applicability of the provisions of the 2013 Act.

What is envisaged by exercise of powers under section 10

read with section 16 of the Act is that there is only user of

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

land and there is no acquisition so as to bring the aspect

of compensation under the provisions of the 2013 Act.

While deciding the case of Dilip Singh Chauhan (supra),

the Division Bench had considered the decision in the

case of Himmatbhai Vallabhbhai Patel (supra). Here

was a case where the appellant had approached the

authorities asking for documentary proof from the

authorities of the company to undertake work of laying

down overhead lines and having found that there was no

consent of the company, the appellant objected against

the execution of the project by the electricity company.

One of the contentions raised by the appellant was that

such execution of projects by entering into the lands

without obtaining prior consent and initiating appropriate

proceedings for acquisition of the lands was not proper.

In light of this, analysing the provisions of Sections 67

and 164 of the Electricity Act having found that in the

case before it since there was a notification and an

approval under section 164 of the Electricity Act, it was

competent for the licencee to exercise all powers

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

possessed under the Telegraph Act. The Division Bench

of the court after considering the provisions of section 10

categorically held that by exercise of such powers there is

no acquisition of any right other than that of the user in

the property.

8.6 In the case of Jaisinh Parshottambhai Patel

(supra), the court considering the provisions of the

Telegraph Act and the Electricity Act in para 5.35 of the

judgement had reiterated what was set out by the

Division Bench in the case of Dilip Singh Chauhan

(supra). Paragraphs no. 6.3 to 6.5 of the decision are

reproduced hereinbelow:

"6.3 The valuation of property for the purpose of compensation is another important aspect. It may be difficult for the electricity company to take out the basis of the valuation of the property, over which the lines are to be laid down or the towers are to be constructed, since the development in the respective area may vary from case to case. For example, an agricultural land in the remote village will have a different value in comparison to agricultural land in the city area for the land already used for non-agricultural purpose like residential, industries, etc., or the use of residential

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

or industry, as may be permissible, etc. It may be that at the time when the Telegraph Act was enacted, no standard or basic yardstick for valuation of the land or the property was available, but as on today and even when the Act of 2003 came into force, the valuation is already made by the State Government of all the areas for the purpose of stamp duty, which is popularly known as jantri valuation. It is possible that in every case Jantri Valuation may not reflect the correct market value of the land, but for the purpose of awarding of compensation at the first instance by the Electricity Company in capacity as the authority under the Telegraph Act can take the basis of the jantri valuation of the respective land. After considering the jantri valuation it may be examined as to whether there is full curtailment of the right of the owner or occupier or not. If the curtailment of the right of the owner or occupier is to the fullest extent, appropriate compensation based on jantri valuation can be fixed, whereas if the curtailment of the right of the owner or occupier over the land is lesser, a mode or mechanism may be required to be provided about the percentage of curtailment of right. The guiding factor can be by way of rental compensation for the deprivation of the property for a limited period. Further, if the deprivation is only in part, it can be considered percentage-wise namely; that if the use is permissible, may be by running with the risk of electricity in the nearby area, such may result into 30% curtailment of the right, whereas if the overhead line is passing through agricultural land located in the remote agricultural area, it may result into damage to 10% of the property, as against the same if line is passing over an agricultural land in an urban area located in the urban or nearby urban area, the potentiality can be

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

said as lost to the extent of 50%. Of course, the aspect of the area covered by the overhead line with the measurement would be relevant while examining the actual damage to the owner or occupier. In our view, it may not be possible for this Court to lay down any standard yardstick for assessment of the damages and consequently the compensation, but it is obligatory on the part of the Electricity Company to take into consideration the aforesaid aspect and thereafter, to quantify the amount of compensation and to simultaneously pay to the owner or occupier of the land can be considered as that of the jantri valuation and the assessment of the damage may be made based on the curtailment of the right of the owner or occupier on account of the laying down of the line. The aforesaid could be said as the basic requirement for exercise of the power by the authority for laying down of the line as per the Section 10(d) of the Act. If the mandatory requirement of causing as little damage as possible or payment of full compensation is not followed, the action may be rendered illegal.

6.4 However, the Act does not end there, but it further provides the other remedial measure as per Section 16 of the Act. Therefore, we may be now required to examine the aspect of further exercise of power under Section 10(d). If Section 10(d) is read with Section 16(1), it is clear that the owner or occupier has a right to resist or obstruct. At the same time, it is in absence of any resistance or obstruction by the owner or occupier, the licensee as the Telegraph Authority may proceed to exercise the power of laying down of the line, but as observed earlier, even in absence of resistance or obstruction by the owner or occupier, the obligation will remain upon the licensee as the

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

Telegraph Authority to do the least damage and to pay full compensation.

6.5 The next aspect is the sufficiency of compensation. As observed by us herein above, the payment of full compensation for the damage caused is a mandatory requirement The observations made by us herein above are some of the methods and measures for assessment of the damage and consequently the compensation. The licensee as Telegraph Authority can be said as required to consider the aforesaid aspect and thereafter to fix the amount of compensation and to pay simultaneously with the laying down of the line. However, if the owner or occupier finds that the compensation paid by the licensee as Telegraph Authority is not sufficient, the owner or occupier or may be in a given case, the licensee as the Telegraph Authority may make application to the District Judge and ultimately the District Judge has to finalize the aspect of sufficiency of compensation. When the matter comes up before the learned District Judge for the aspect of sufficiency of compensation, he would finalize on the basis of evidence led before him. As per the Scheme of Section 16, the District Judge has to finally decide the aspect of sufficiency of compensation. Since the power vests to judicial authority we do not find it proper to observe further, except that the matter shall be examined in accordance with law by the learned District Judge at that stage and the aspect of sufficiency of compensation shall be finalized. Such decision of the District Judge is binding to both the sides with the further proviso that the decision shall not adversely affect the right of any person to recover by suit the whole or any part of the compensation paid by the licensee as Telegraph Authority from

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

the person, who has received the same."

8.7 Reading the question of law decided by the Division

Bench of this court, it is evident that, that being aware of

the fact that the valuation of the property for the purpose

of compensation is an important aspect, it categorically

found that it is difficult for the company to take out basis

of valuation of property and the company can take the

basis of the jantri value of the respective land whereas

the aspect of sufficiency of compensation is concerned, in

no uncertain terms in paragraph 6.5 of the jugement, the

Division Bench held that if the owner or occupier finds

that the compensation paid by the licencee as telegraph

authority is not sufficient, the aspect of sufficiency can

only be decided by the District Magistrate. In the facts

on hand, as is argued by learned advocates for the

respective parties and on the basis of the relevant

government resolutions and the notifications placed on

record, it is evident that adopting the yardstick of

compensation as set out in paragraph no. 8 of the petition

which reads as under, the petitioner company assessed

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

and adopted the compensation that in its perception was

"full compensation". Having done so, it was not within

the domain of the respondents no. 1 and 2 to enter into

the aspect of "sufficiency of compensation" which could

only be decided by a District Judge under section 16(3) of

the Telegraph Act.

"(i) Compensation for tower base area to be paid is at the rate of 85% of the value of the land as per prevalent jantri rate with increment of maximum 10% thereon year on year,

(ii) Compensation towards diminution of land value in the width of ROW Corridor due to laying of transmission line to be paid is at the rate of 15% of the value of land as per prevalent jantri rate with increment of maximum 10% thereon year on year, and

(iii) Compensation for loss of trees is to be based on the circular dated 12.1.2021 issued by the Revenue Department, Government of Gujarat, and compensation for loss of crop, is to be paid based on rates determined by Agricultural Produce Market Committee (APMC) and concerned Sarpanch/Talati/Mamlatdar has to certify the same. ..."

9. The other aspect that needs to be considered is

whether by the impugned order of 05.01.2023 was the

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

authority right in invoking the provisions of Article 300A.

Having extensively discussed based on the judgements of

the Division Bench that the petitioner company was only

the user of the land and there was no land acquired for

the purposes of the project, as held in the case of Gujarat

State Energy Transmission Limited (supra) which

considered the decision in the case of Power Grid

Corporation (supra), the final conclusion that the

Division Bench arrived at in paragraph 58 needs to be set

out as under:

"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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

that authority, whereas, no such permission is required in relation to the 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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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 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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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 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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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 telegraphic lines and posts for the purposes of a telegraph established by the

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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 concerned 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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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 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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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 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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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 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

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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.

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

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]"

9.1 The salient features of the conclusion arrived at by

the Division Bench indicate that section 10 of the

Telegraph Act confers a legal sanction to a telegraph

authority in this case the petitioner to enter into any

private property albeit with an obligation that it will

cause as little damage as possible and pay full

compensation. The question of providing an opportunity

of hearing does not arise. The authorization in terms of

section 164 of the Electricity Act read with Section 10

thereof which includes the power to enter the property

was vested in the petitioner in the facts of this court. In

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

paragraph 58.29, which is quoted the Division Bench in

no uncertain terms held that the Electricity Act is a

progressive enactment. The purpose providing electricity

is to promote industrial and sustainable development in

all walks of life. What is important that the Division

Bench observed is that the right of the land owner to

possess and enjoy the property though recognised as a

constitutional right under Article 300A, such right has to

yield to the Articles 14 and 21 and what is evident from

the facts of the case is that having been vested with

powers under section 164 the petitioner company was

within its right to ask for protection so as to see that the

projects that it has been entrusted with could be

executed. The role of the respondents no. 1 and 2 would

be to grant such permission for execution of projects and

no further. Section 16(3) when read indicates that if

there is any dispute that arises concerning the sufficiency

of compensation to be paid under section 10(d) it is only

the District Judge which would have the authority to do

so.

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

10. As far as the applicability of the act 30 of 2013 is

concerned and the reliance placed on the judgements of

the Andhra Pradesh High Court and the Kerala High

Court is concerned, the case of Bala Balaji Srinivasa

Estates Private Limited (supra) was a case under The

Petroleum and Minerals Pipeline (Acquisition of Right of

User in Land) Act, 1962 and not one directly dealing with

the provisions of the Electricity Act. As far as the case of

Rajan D (supra) is concerned, from the facts that are set

out in paragraph no. 2 & 3 thereof, the position of law

with respect to the judgement of the Kerala High Court,

cannot be considered as good law in light of the

judgments of the Division Bench of this court which has

extensively referred to the judgement of the Apex Court

post 2013 Act in the case of Power Grid

Corporation(supra).

11. Even otherwise, in the case of Harihar Build Space

(supra), the Bombay High Court in para 23 of the decision

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

which is reproduced hereinbelow has categorically held

that since no acquisition of land is contemplated under

the Telegraph Act the provisions of 2013 Act will not be

applicable.

12. For all the aforesaid reasons, the impugned orders

dated 12.10.2022 and 05.01.2023 are quashed and set

aside. The respondents no. 1 and 2 are directed to permit

the petitioners to exercise its powers as telegraph

authorities for the erection of transmission lines and

towers in the villages of Charanka, Aluvas, Patanka,

Babra, Bavarda Bakutra, Dhokavada, Barara and Jakhotra

in District Patan and the respondents no. 1 and 2 are

directed to issue appropriate orders / directions providing

police protection for carrying out such work. By the

order dated 19.12.2022, the petitioner had deposited the

amount of compensation before the Deputy Collector.

The respondents no. 3 to 15 are at liberty to withdraw the

amounts subject to their rights to challenge the

sufficiency thereof under section 16(3) of the Telegraph

C/SCA/25785/2022 JUDGMENT DATED: 15/02/2023

Act before the District Judge. Petition is accordingly

allowed. Rule is made absolute. No costs.

(BIREN VAISHNAV, J) DIVYA