Gujarat High Court
Kurjibhai Mohanbhai Goti vs Gujarat Energy Transmission ... on 13 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/3169/2014 ORDER DATED: 13/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3169 of 2014
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KURJIBHAI MOHANBHAI GOTI & ORS.KURJIBHAI MOHANBHAI GOTI
Versus
GUJARAT ENERGY TRANSMISSION CORPORATION LTDGUJARAT
ENERGY TRANSMISSION CORPORATION LTD & ORS.
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Appearance:
MR DILIP B RANA(691) for the Petitioner(s) No. 1,2,3,4
MR SP HASURKAR(345) for the Respondent(s) No. 1,2,3,4
RULE NOT RECD BACK for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 13/02/2024
ORAL ORDER
1. Heard Mr. Dilip B. Rana, learned advocate appearing for
the petitioners and Mr. S.P. Hasurkar, learned advocate
appearing for the respondents.
2. By way of present petition, the petitioners herein have
prayed for the following reliefs:
"(A) The Hon'ble Court be pleased to issue a writ of mandamus or
writ in the nature of mandamus or any other appropriate writ, order or
direction by quashing and setting aside the impugned decision of the
respondent - authorities for granting approval for shifting of 66 KV line
and to restore original position of 66 KV line as prevailing before the
approval.
(B) Pending the final hearing and disposal of the petition, the
Hon'ble Court be pleased to restrain the respondent No.4 from making
any such construction or transaction for the property which obstructs
to restore the original position prior to shifting of 66 KV lines.
(C) The Hon'ble Court be pleased to pass such order as may be
deemed fit and proper in the circumstances of the case."
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3. Mr. Dilip B. Rana, learned advocate appearing for the
petitioners, submitted that the petitioners are the owners of
the agricultural land bearing survey No.46/1, Block No.35
situated at Village - Moje Haripura, Tal. Palsana, District :
Surat. By way of present petition, the petitioners herein have
challenged the illegality and irregularities committed for
shifting 66 KV line from survey No.27 by passing the said line
from the land of the petitioners without obtaining NOC and
without giving any notice to the petitioner and without
following due procedure of law.
3.1 Mr. Rana, learned advocate, submitted that the
respondent No.4 herein approached the respondent authority
for shifting of the said 66 KV line by communication dated
01.11.2011 and the approval came to be granted for the same
on 30.01.2012 on the condition that NOC be obtained from
block Nos.26, 27, 35, and 42 of the Village : Haripura, wherein,
the block No.35 belongs to the present petitioners. Mr. Rana,
learned advocate, also submitted that the petitioners have not
granted NOC however, in-spite of non - granting of NOC by the
petitioners, the respondent authority has proceeded to lay
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down the said line. It was submitted that the line passes
through the land owned by the petitioners and by laying down
such line, the respondent authority has overreached the
process of law. In absence of the NOC from the petitioners,
such line could not have been permitted to be laid which is
passing through the land of the petitioners.
4. Per contra, Mr. S.P. Hasurkar, learned advocate
appearing for the respondent authorities, placed reliance on
the affidavit-in-reply filed by the respondent authorities. It was
submitted that the said line was not laid pursuant to the
request made by the respondent No.4 for shifting of line
however, the decision was taken in wake of strengthening the
existing line and further catering to the need of other
consumers in the very area. Mr. Hasurkar, learned advocate,
denied that the shifting was at the request of the respondent
No.4. It was submitted that the petitioners have no right to
seek restoration of the original situation since laying down of
line and maintenance of line is sole responsibility of the
Gujarat Energy Transmission Corporation Limited and the
same is being undertaken pursuant to the duties imposed upon
the State Transmission Utility under Section 39 of the
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Electricity Act, 2003.
5. Mr. Hasurkar, learned advocate, placing reliance on
paragraph 6 of the affidavit-in-reply, submitted that (i) there is
no tower located on the land of the petitioners (ii) only
overhead lines are passing through the land of the petitioners
(iii) when the work of shifting was carried out earlier,
petitioners land was not converted as NA land and (iv) the lines
which are passing, are on the T.P. Road which is recently
constituted and there is no damage or actual cut has occurred
to the land usable by the petitioners. Reliance is placed on the
map duly produced at Annexure - R3.
6. Having considered the rival submissions advanced by the
learned advocates appearing for the respective parties, the
contention of the petitioners that the line-in-question came to
be laid at the instance of the respondent No.4 and the
petitioners herein have not granted NOC, the said line is laid
by the respondent authority independently and before the
filing of the petition. The petitioners herein have alleged
against the officers of the respondent authority however, the
said officers were also withdrawn even before the filing of the
petition.
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7. Mr. Rana, learned advocate appearing for the petitioners,
has failed to point out that the line-in-question passes by the
land of the petitioners.
7.1. Considering the reply filed by the respondent authority,
the line does not pass through the land of the petitioners. Only
the overhead lines passes through the land of the petitioners
and there is some construction also erected on the said land
pursuant to the land having been converted into non-
agricultural land.
8. It is apposite to refer to ratio as laid down by the Hon'ble
Division Bench of this Court in Letters Patent Appeal No.534 of
2020 in Special Civil Application No.20373 of 2019 wherein,
paragraph 56 reads thus:
"56. A Division Bench of the Bombay High Court, speaking through
Hon'ble Justice S.A. Bobde (as His Lordship then was) negatived all the
contentions, referred to above, and held as under;
"The land of the petitioners, which is largely agricultural, fall
within the meaning of the term "estate". The term "rights" has
been defined to include any rights vesting in a proprietor, sub-
proprietor etc. vide Clause (b) of Sub-Article (2). Under the
provisions of the Electricity Act, 2003 and the Indian Telegraph
Act, 1885 in question, the authorities, under directions of the
Government, acquire several rights in estates. Those rights are in
the nature of opening up and breaking up of the soil and
pavement of any street, railway or tramway upon certain
conditions, the power to lay overhead lines and for that purpose
do all things necessary, including the removal of trees, structures
and objects, vide Sections 67 and 68 of the Electricity Act, 2003
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or the old Act of 1910. The authorities also acquire the rights over
estates, such as the user of property under, over, along, across,
in or upon which the telegraph authority places any line or post
vide 10(b), the right to enter the property in order to repair or
remove lines vide 11, the power to alter position of gas or water
pipes or drains vide 14 and further to apply for an order for
removing resistance or obstruction to the exercise of such a right
by a District Magistrate. The effect of Clause (b) to the proviso to
Section 10 of the Telegraph Act is that though the authority may
place etc. a line upon any immovable property, the Central
Government thereby does not acquire any right other than that of
user only in the property. Thus, the provisions in question must
be construed as law providing for the acquisition of rights in any
estate within the meaning of Article 31A and, therefore, cannot
be deemed to be void on the ground that they are inconsistent
with or take away or breach any of the fundamental right
conferred by Articles 14 or 19 of the Constitution. An executive
act performed under the law in question, namely, of deciding to
enter upon and entering the property of owners, is also not
vitiated on the ground that the initial attempt to enter the
property for the purpose of placing lines was not preceded by
notice or hearing. As observed earlier, the scheme of the law is
that the person offering resistance or obstruction is entitled to be
heard when the transmission company applies for removal of
such resistance and obstruction under Section 16(1). In our view,
though not expressly provided for, the requirement of hearing
must be read into Section 16 (i). We are informed that as a
practice land owners are always heard when applications are
made by a transmission company for removal of obstruction and
resistance. The requirement to hear the owners or occupiers at
this stage is, in our view, sufficient compliance with the rules of
natural justice and, admittedly, in the present case all the
petitioners have been heard by the District Magistrate.
It was contended by Mr. R.P. Joshi, the learned counsel for the
petitioners that to the extent the fundamental rights are part of
the basic structure of the Constitution, even the validity of laws
placed in the Nineth Schedule can be tested against the basic
structure of the Constitution as held by the Supreme Court in I.R.
Coelho (Dead) By LRs. vs. State of T.N. - (2007) 2 SCC 1. No
question of any immunity on the ground that the laws are placed
in the Nineth Schedule arises here. In fact, we find that in
Coelho's case the Supreme Court distinguished between the
scheme of immunity provided by Article 31A and Article 31B. It
observed in relation to Article 31A that,
".......Article 31-A does not exclude uncatalogued number of laws
from challenge on the basis of Part III. It provides for a standard
by which laws stand excluded from judicial review......."
Thus the reliance on the observations of the Supreme Court in
Coelho's case for the proposition that it is not permissible to
override the entire Part III of the Constitution by invoking Article
31A are misplaced.
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Mr. Manohar relied on the judgment of the Supreme Court in K.T.
Plantation Private Limited and anr. vs. State of Karnataka - (2011)
9 SCC 1 and submitted that the Supreme Court has reiterated
that a law is immune from challenge on the ground of
arbitrariness, unreasonableness under Article 14 of the
Constitution of India. In the context of a law made by the
Legislature of a State, the Supreme Court observed as follows:-
"208. We have already found, on facts as well as on law, that the
impugned Act has got the assent of the President as required
under the proviso to Article 31-A(1), hence, immune from
challenge on the ground of arbitrariness, unreasonableness under
Article 14 of the Constitution of India.
209. Statutes are many which though deprive a person of his
property, have the protection of Article 30(1-A), Articles 31-A, 31-
B, 31-C and hence are immune from challenge under Article 19 or
Article 14, the basic structure and the rule of law, apart from the
ground of legislative competence. In I.R. Coelho case the basic
structure was defined in terms of fundamental rights as reflected
under Articles 14, 15, 19, 20, 21 and 32. In that case the Court
held that statutes mentioned in Schedule IX are immune from
challenge on the ground of violation of fundamental rights, but if
such laws violate the basic structure, they no longer enjoy the
immunity offered by Schedule IX."
19. Mr. Joshi, the learned counsel for the petitioners relied on the
observations of the Supreme Court in the case of K.T. Plantation
Pvt. Ltd. to the effect that a law, though protected by Article 31-
A, may still be attacked on the ground that it violates the rule of
law or basic structure of the Constitution. However, there is
nothing in the present provisions which can be shown to have
violated the rule of law or the basic structure of the Constitution.
Mr. Joshi also relied on certain observations of the Supreme Court
in Sahara India (Firm), Lucknow vs. Commissioner of Income Tax,
Central-I and anr. - (2008) 14 SCC 151 and submitted that a
hearing is an essential requirement before an administrative
action is taken. In Sahara India, however, the Supreme Court was
considering, whether a hearing before an order under Section
142(2-A) of the Income Tax Act requiring special audit was
necessary. The Supreme Court observed that, an order under the
said provisions of the Income Tax Act leads to serious civil
consequences and though the provision does not either provide
or bar a pre-decision hearing, the principle of audi alteram
partem will have to be read in such a provision.
20. Mr. Joshi also relied on the decisions of the Supreme Court in
Raghbir Singh Sehrawat vs. State of Haryana and ors. - (2012) 1
SCC 792 and Darshanlal Nagpal (Dead) By LRs. vs. Government
of NCT of Delhi and ors., where the Supreme Court discussed the
importance of natural justice enshrined in Section 5A of the Land
Acquisition Act before any person is deprived of his land by way
of compulsory acquisition. The Supreme Court held that such a
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person must have an opportunity to oppose the decision of the
State Government to acquire the particular parcel of land,
particularly since he may also point out that the land proposed to
be acquired is not suitable for the purpose specified in the
notification issued under Section 4(1). The present case does not
involve the acquisition of land but only the user by the State for a
limited purpose, for which there is provision for payment of
compensation. Moreover, it seems unreasonable to confer on the
owners or occupiers of land a choice about what should be the
route of the electric line and where it should be placed, since
such a decision must yield to the dictates of technical knowledge,
expertise and viability. There is no doubt that if all owners and
occupiers of land over hundreds of kilometers are allowed to have
a say and object to the routes and if the validity of the orders
passed under objection is allowed to be contested, the route may
not get finalized for years. Having regard to the importance of
electricity to the life of citizen, particularly to essential services
and industry, such a procedure would be detrimental to public
interest. Similarly, the observations in Darshanlal Nagpal's case,
emphasizing the importance of the rules of natural justice cannot
be applied to the present case. Apart from the fact that challenge
on the ground of Article 14 is excluded by virtue of Article 31A,
we are of the view that the present case calls for a situational
exception and of necessity, the authorities may not be compelled
to hear owners and occupiers before deciding on the route over
which an electric line should be placed. Therefore, the contention
that the legislative scheme, which does not require the
authorities to hear the owners and occupiers of the land while
planning the route of an electric line is unconstitutional, is
rejected. So also the contention that Section 164 of the Electricity
Act, 2003 and Section 10 of the Indian Telegraph Act, 1885 are
void being violative of Article 14 is rejected.
We do not see any merit in the contention that the provisions are
violative of Article 21 on the ground that they adversely affect
the health of persons living in or around high tension lines. In the
first place, the electric line in question, which is high tension 400
KV line is to be placed over agricultural fields and not over a
residential area. Secondly, no proof is placed before the court to
enable it to draw an inference that the placing of electric line
causes cancer as alleged. We are unable to draw this inference
on the basis of a report from Australia placed on record.
It was next contended on behalf of the petitioners that the action
of the transmission company in placing the electrical line over the
lands of the petitioners without obtaining the consent of the
owner or occupier is violative of Section 12 (2) of the Electricity
Act, 1910. Section 12(2) of the said Act reads as follows:-
12. Provisions as to the opening and breaking of streets, railways
and tramways. - (1) ........ (2) Nothing contained in sub-section (1)
shall be ig deemed to authorise or empower a licensee, without
the consent of the local authority or of the owner or occupier
concerned, as the case may be, lay down or place any electric
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supply-line, or other work in, through or against any building, or
on, over or under any land not dedicated to public use whereon,
whereover or whereunder any electric supply line or work has not
already been lawfully laid down or placed by such licensee:
Provided that any support of an overhead line or any stay or strut
required for the sole purpose of securing in position any support
an over-head line may be fixed on any building or land or, having
been so fixed may be altered, notwithstanding the objection of
the owner or occupier of such building or land, if the District
Magistrate or in a Presidency- town the Commissioner of Police by
order in writing so directs:
Provided, also, that, if any time the owner or occupier of any
building or land on which any such support, stay or strut has
been fixed shows sufficient cause, the District Magistrate or, in a
Presidency- town the Commissioner of Police may by order in
writing direct any such support, stay or struct to be removed or
altered.
This contention is misplaced in view of the provisions of the
Electricity Act, 2003. This Act was enacted for consolidating the
laws relating to generation, transmission, distribution, trading
and use of electricity and generally for taking measures
conducive to development of electricity industry. The Statement
of Objects and Reasons specifically referred to the need of
harmonising and rationalising the provisions of the Indian
Electricity Act, 1910 and the necessity to enact new legislation
for regulating the electricity supply industry in the country which
would replace the existing laws. Section 185 of the Electricity Act,
2003 repealed the Indian Electricity Act, 1910 containing Section
12 relied upon by the petitioners. Section 185 reads as follows:-
185. Repeal and saving.-- (1) Save as otherwise provided in this
Act, the Indian Electricity Act, 1910 (9 of 2010), the Electricity
(Supply) Act, 1948 (54 of 1948) and the Electricity Regulatory
Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal, -- (a) anything done or any
action taken or purported to have been done or taken including
any rule, notification, inspection, order or notice made or issued
or any appointment, confirmation or declaration made or any
licence, permission, authorisation or exemption granted or any
document or instrument executed or any direction given under
the repealed laws shall, insofar as it is not inconsistent with the
provisions of this Act, be deemed to have been done or taken
under the corresponding provisions of this Act;
(b) the provisions contained in sections 12 to 18 of the Indian
Electricity Act, 1910 (9 of 1910), and rules made thereunder shall
have effect until the rules under sections 67 to 69 of this Act are
made;
(c) the Indian Electricity Rules, 1956 made under section 37 of
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the Indian Electricity Act, 1910 (9 of 1910) as it stood before such
repeal shall continue to be in force till the regulations under
section 53 of this Act are made.
(d) all rules made under sub-section (1) of section ig 69 of the
Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have
effect until such rules are rescinded or modified, as the case may
be;
(e) all directives issued, before the commencement of this Act,
by a State Government under the enactments specified in the
Schedule shall continue to apply for the period for which such
directions were issued by the State Government.
(3) The provisions of the enactments specified in the Schedule,
not inconsistent with the provisions of this Act, shall apply to the
States in which such enactments are applicable.
(4) The Central Government may, as and when considered
necessary, by notification, amend the Schedule.
(5) Save as otherwise provided in sub-section (2), the mention of
particular matters in that section, shall not be held to prejudice or
affect the general application of section 6 of the General Clauses
Act, 1897 (10 of 1897), with regard to the effect of repeals.
According to the petitioners since Rules have not been made
under Sections 67 to 69 of the new Act of 2003, the provisions
contained in Sections 12 to 18 continue to have effect as
provided by Clause (b) above and, therefore, the respondents
were bound to obtain the consent of the owners and occupiers of
the land under Section 12. This submission is based on an
erroneous assumption that the act of placing an electric line is
being performed by the Transmission Company under Section 12
of the Electricity Act, 1910 which is temporarily saved as a
transitory provision till the enactments of rules. On the other
hand, the State of Maharashtra has issued a notification under
Section 164 of the new Act of 2003 conferring powers with
respect to the placing of telegraph lines and posts, which the
Telegraph Authority possesses under the Indian Telegraph Act,
1885 for the purpose of placing of electric line for transmission of
electricity on the Transmission Company. When such a
notification is issued under the Electricity Act, 2003 in terms, the
person authorized exercises powers of a Telegraph Authority
under the provisions of the Indian Telegraph Act, 1885 and not
powers under Sections 12 to 18 of the old Act, 1910 which are
temporarily saved. It is obvious that after such authorization
under Section 164 of the new Act 2003, the Transmission
Company is bound to exercise the powers of a Telegraph
Authority with respect of placing of telegraph lines and posts for
the purpose of placing of an electric line for the transmission of
electricity. These powers are found in Part-III of the Indian
Telegraph Act, 1885 vide Sections 10 to 16. None of these
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provisions provide for obtaining consent of an owner or occupier
of the land. The legislative scheme in regard to the electric lines
is that after the repeal of the Indian Electricity Act, 1910, the
work of placing of electrical lines must be done under Sections 12
to 18 of the old Act 1910 till rules are framed under Sections 67
and 68 of the new Electricity Act, 2003. If there is any such
notification under Section 164 of the new Act 2003, conferring
powers of the Telegraph Authority for the purpose of placing
electric lines, during the transitory period when rules are not
framed under Sections 67 and 68 of the new Act 2003, the did
not and cannot act under Sections 12 to 18 of the old Act, 1910.
The contention on behalf of the petitioners is, therefore,
rejected."
9. In light of the aforesaid, after following due process of
law, the line having been laid as back as on 19.05.2012 before
filing of the petition. The petitioners have failed to point out
that the 66KV line passes through the petitioners land. Further,
the complaint filed by the petitioners stands withdrawn even
before filing of the petition. No legal or fundamental right of
the petitioners can be said to have been abridged by the
action of the respondent authorities in laying down the 66KV
line. The impugned action undertaken by the respondent
authorities of granting approval of 66 KV line require no
interference under Article 226 of the Constitution of India.
10. Accordingly, the present petition stands dismissed. Rule
is discharged.
(VAIBHAVI D. NANAVATI,J)
NEHA
