Sri D Suresh Kumar vs Karnatka Power Transmission ...
2021 Latest Caselaw 1745 Kant

                             1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF MARCH, 2021

                       PRESENT

        THE HON'BLE MR.JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

       WRIT APPEAL NO.373 OF 2012 (GM-KEB)
                         C/W
       WRIT APPEAL NO.550 OF 2012 (GM-KEB)


W.A. NO.373/2012:

BETWEEN:

1.    SRI. D. SURESH KUMAR
      S/O DHANRAJ,
      AGED ABOUT 39 YEARS

2.    SRI. PRAKASH D JAIN
      S/O DHANRAJ
      AGED ABOUT 37 YEARS

      BOTH RESIDENTS OF
      SUBHASHCHANDRA BOSE EXTENSION,
      HULIYAR ROAD, HIRIYUR,
      CHITRADURGA DISTRICT-572143.
                                          ...APPELLANTS

(BY DR. NANDA KISHORE, ADVOCATE FOR SRI. A.C. BALARAJ,
ADVOCATE)
                           2




AND:

KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
MAJOR WORKS DIVISION,
II FLOOR, R.H. BUILDING,
P.B. ROAD, DAVANGERE,
DAVANGERE DISTRICT-577001
REPRESENTED BY ITS
EXECUTIVE ENGINEER
                                         ...RESPONDENT
(BY SRI. H.V.DEVARAJU, ADVOCATE)


      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE PASSED IN
W.P.5578/2010 AND W.P.NO.8078/2010 DATED 11.08.2011 IN
SO   FAR    AS  RESTRICTING    THE  COMPENSATION    TO
RS.1,46,030/- AS AGAINST RS.350/- PER SQ.FT. FOR TOTAL
EXTENT OF THE LANDS BELONGING TO THE APPELLANTS AND
BE PLEASED TO GRANT THE RELIEFS AS PRAYED FOR IN THE
ABOVE WRIT PETITION AND ALLOW THE WRIT APPEALS WITH
COSTS, TO MEET THE ENDS OF JUSTICE AND EQUITY.


W.A. NO.550/2012:

BETWEEN:

KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
MAJOR WORKS DIVISION,
II FLOOR, R.H. BUILDING,
P.B. ROAD, DAVANGERE,
DAVANGERE DISTRICT-577001
NOW CHITRADURGA DISTRICT-572143
REPRESENTED BY ITS
EXECUTIVE ENGINEER
                                           ...APPELLANT
(BY SRI. H.V.DEVARAJU, ADVOCATE)
                             3




AND:

1.     SRI. D. SURESH KUMAR
       AGED ABOUT 39 YEARS,
       SON OF DHANRAJ,
       SUBHASHCHANDRA BOSE EXTENSION,
       HULIYAR ROAD, HIRIYUR,
       CHITRADURGA DISTRICT-572143.


2.     SRI. PRAKASH D. JAIN
       AGED ABOUT 37 YEARS,
       SON OF DHANRAJ,
       SUBHASHCHANDRA BOSE EXTENSION,
       HULIYAR ROAD, HIRIYUR,
       CHITRADURGA DISTRICT-572143.
                                          ...RESPONDENTS

(BY DR. NANDA KISHORE, ADVOCATE FOR SRI. A.C. BALARAJ,
ADVOCATE FOR RESPONDENT NOs.1 AND 2)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN WRIT PETITION NOs.5578/2010 AND
8078/2010 DATED 11.08.2011.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR   JUDGMENT   ON  17.02.2021,  COMING ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, NATARAJ
RANGASWAMY J., DELIVERED THE FOLLOWING:

                       JUDGMENT

These intra-court appeals are filed challenging the

order dated 11.08.2011 passed by the learned Single

Judge of this Court in W.P.Nos.5578/2010 and 8078/2010.

2. W.A. No.373/2012 is filed by the land

losers/petitioners challenging the quantum of

compensation determined by the District Judge which was

enhanced by learned Single Judge of this Court, while W.A.

No.550/2012 is filed by the Karnataka Power Transmission

Corporation Limited (henceforth referred to as

'Corporation' in short) challenging the quantum of

compensation determined by the learned Single Judge in

W.P.Nos.5578/2010 and 8078/2010.

3. The facts leading to the filing of

W.P.Nos.5578/2010 and 8078/2010 are that the land

bearing Sy.Nos.202/1A and 202/2A situate at Metikurke

Village, Hiryur Taluk, Chitradurga District were converted

from agricultural to non-agricultural industrial purposes.

The land losers/ petitioners purchased the above land in

terms of a sale deed dated 05.08.1992 to install a

decorticating factory. They got a plan sanctioned for the

building. It is stated that a portion of the land in question

was acquired by the National Highway Authorities for

widening the NH-4 and determined the market value of the

land so acquired at Rs.75/- per sq.ft. and passed an award

on 24.06.2005. Later, the Corporation drew high tension

cables over a portion of the land which divided the

property into two pieces. The land losers/petitioners

claimed compensation which was denied by the

Corporation. The land losers/petitioners therefore filed

W.P.No.23600/2005 to direct the Corporation to remove

the high tension power line and the high tension tower

constructed on their land. The writ petition was disposed of

directing the land losers/petitioners to claim compensation

in accordance with Section 16 of the Indian Telegraph Act,

1885. The land losers/petitioners therefore, sought

compensation at the rate of Rs.350/- per sq.ft. as on the

date of using the land for installation of high tension tower

and the electric line. The land losers/petitioners contended

that after acquisition of 18 guntas of land for the highway,

50% of the remaining land to an extent of 2 acres 29

guntas could not be used for industrial purposes in view of

the overhead high tension line passing through the land.

Therefore, they claimed compensation at the rate of

Rs.350/- per sq.ft. for 50% of the land out of 2 acres 29

guntas along with interest at the rate of 12% p.a. from the

date of installation of the said High Tension Tower and

electric line. When the Corporation failed to pay the

compensation, the land losers/petitioners filed a

Miscellaneous Petition No.16/2006 before the Principal

District Judge at Chitradurga under Section 16(3) of the

Indian Telegraph Act, 1885 seeking compensation at the

rate of Rs.350/- per sq.ft. for 50% of the land out of 2

acres 29 guntas with interest at the rate of 12% p.a. from

the date of installation of high tension tower and electric

line. The District Judge in terms of the Order dated

05.11.2007 allowed the petition and determined the

market value at a sum of Rs.65/- per sq.ft. and held that

the land losers/petitioners were entitled to compensation

of Rs.17,33,550/- with interest at the rate of 6% p.a. from

the date of filing of the petition till payment.

4. The Corporation challenged this order before

this Court in W.P.No.3260/2008 while the land

losers/petitioners also filed W.P.No.10517/2008 for

enhancement of the compensation. The writ petitions were

disposed of in terms of an order dated 09.09.2009 in

terms of which, the claim of the land losers/petitioners

was ordered to be reconsidered.

5. Based on the aforesaid said order, the District

Judge conducted proceedings, passed an order dated

08.12.2009 determining the market value of the property

at a sum of Rs.38,500/- as against the earlier quantified

amount of Rs.17,33,550/-.

6. Being aggrieved by the aforesaid order of the

District Judge, the land losers/petitioners filed

W.P.Nos.5578/2010 and 8078/2010.

7. The learned Single Judge held that the land

losers/petitioners could still utilize the land to raise

agricultural crops in the land under the electric lines and

therefore, held that the land is not totally unfit for

agriculture. The learned Single Judge also held that the

land did not lie in an industrial township to consider

whether it could be used for the purpose of industrial

layout. The learned Single Judge further held that the

height of the structures of the intended factory of the land

losers/petitioners would not be more than 15-20 feet tall

and such structures would not be in conflict with the safety

of the power lines. The learned Single Judge noticed that a

portion of a land was acquired for widening of national

highway No.4 and the compensation was determined at a

sum of Rs.75/- per sq.ft. But, the learned Single Judge

held that the amount could not be considered as a safe

guideline to assess the compensation in the present case

as the land would continue remain with the land

losers/petitioners. Hence, the learned Single Judge felt it

appropriate to award Rs.5/- per sq.ft. for the aerial

encroachment and sum of Rs.75/- per sq.ft. for the area of

the tower measuring 189 sq.ft. and thus, enhanced the

compensation to Rs.1,46,030/-.

8. Being aggrieved by the order passed by the

learned Single Judge, the present appeals are filed. The

learned counsel for the appellants contended that the

power line has now bifurcated the property in to two parts

and that it would be impossible for them to use the land

for the purpose for which they had purchased. They

contended that the utility of the land is now depleted since

no structures can be now put up underneath the power

lines and a set back area is also prescribed which

diminishes the utility of the land. Therefore, he contended

that the compensation awarded by the District Judge as

well as the learned Single Judge is liable to be modified.

He contended that the market value determined by the

National Highway Authorities would be a safe guideline to

determine the market value in the present case. He

contended the land is converted for non agricultural

industrial use and therefore, the appellant cannot

undertake any agricultural activity in the land in question.

Be that as it may, he contended that since the utility of the

entire land is wasted, 50% of the land has to be treated as

the affected portion and compensation has to be

determined at the market value at a sum of Rs.75/- per

sq.ft. The learned counsel brought to our notice a copy of

the sketch of the power line running through the land of

the land losers/petitioners which indicate that the property

is now bifurcated into two portions. The learned counsel

brought to our notice a decision passed by a learned Single

Judge of this court in the case of THE EXECUTIVE

ENGINEER, KARNATAKA POWER TRANSMISSION

CORPORATION LIMITED, CHITRADURGA AND ANOTHER

Vs. DODDAKKA, 2014(6) KARL J 185. He also brought to

our notice the Judgment of Supreme Court of India in

KERALA STATE ELECTRICITY BOARD Vs. LIVISHA AND

OTHERS, 2007(6) SCC 792 and invited our attention to

para No.9 and 10 of the Judgment which is extracted

below:

"9. Both telegraph lines and electrical lines are required to be drawn over the agricultural lands and/or other properties belonging to third parties.

In drawing such lines, the entire land cannot be acquired but the effect thereof would be diminution of value of the property over which such line is drawn. The Telegraph Act, 1885 provides for the manner in which the amount of compensation is to be computed therefor. Section 10 of the Act empowers the authority to place and maintain a telegraph line under, over, along or across, or posts in or upon any immovable property. Section 11 empowers the officers to enter on property in order to repair or remove telegraph lines or posts. Section 12 empowers the authority to grant permission for laying down such lines to a local authority in terms of clauses (c) & (d) of the proviso to Section 10 of the Act subject to reasonable conditions as it may think fit. Section 16 of the said Act reads as under :-

"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 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 (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 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."

10. The situs of the land, the distance between the high voltage electricity line laid thereover, the extent of the line thereon as also the fact as to whether the high voltage line passes over a small track of land or through the middle of the land and other similar relevant factors in our opinion would be determinative. The value of the land would also be a relevant factor. The owner of the land furthermore, in a given situation may lose his substantive right to use the property for the purpose for which the same was meant to be used."

9. Per contra, the counsel for the corporation

contended that the market value fixed by the National

Highway Authority cannot be the criteria as in the latter

case, the possession of the land would be taken over while

in the present case, the possession of the land would be

with the petitioners. He contended that the land

losers/petitioners could still utilize the remaining portion of

the land and therefore, they cannot claim that the utility of

the land is diminished.

10. We have given our anxious consideration to

the arguments advanced by the learned counsel for the

parties. As rightly contended by the learned counsel for the

land losers/petitioners the Corporation has to follow the

provisions made in the Indian Electricity Rules, 1956 while

drawing overhead lines. Rule 77 deals with the clearance

to be provided from the ground to lowest conductor. Rule

79 provides for clearance from low and medium voltage

lines and service lines which is extracted below:

"79. Clearance from buildings of low and medium voltage lines and service lines:-

(1) Where a low or medium voltage over-

head lines passes above or adjacent to or terminates on any building, the following minimum clearances from any accessible point, on the basis of maximum sag, shall be observed:-

(a) for any flat roof, open balcony, verandah roof and lean-to-roof--

(i) when the line passes above the building a vertical clearance of 2.5 metres from the highest point, and

(ii) when the line passes adjacent to the building a horizontal clearance of 1.2 metres from the nearest point, and

(b) for pitched roof--

(i) when the line passes above the building a vertical clearance of 2.5 metres immediately under the lines, and

(ii) when the line passes adjacent to the building a horizontal clearance of 1.2 metres.

(2) Any conductor so situated as to have a clearance less than that specified in sub-rule (1) shall be adequately insulated and shall be attached words "by means of metal clips" omitted by GSR 523, dated 28.3.1966 (w.e.f. 9.4.1966) at suitable intervals to a bare earthed bearer wire having a breaking strength of not less than 350 kg.

(3) The horizontal clearance shall be measured when the line is at a maximum deflection from the vertical due to wind pressure."

11. While Rule 80 provides for clearance from

buildings of high and extra high voltage lines.

12. In the present case, the corporation has drawn

transmission lines and have erected a tower in an area

measuring 30ft x 40ft in the land of the land

losers/petitioners. On account of the overhead lines, the

land losers/petitioners are deprived of undertaking any

industrial activity below the overhead lines and therefore

to that extent, they are deprived of the usage and utility of

the land. This deprivation shall continue so long as the

overhead lines exist over the property of the land

losers/petitioners. Having regard to the judgment of the

Apex court in the case of Kerala State Electricity board

(Supra) it cannot be gainsaid that there is diminision of the

value of the property over which the overhead lines are

drawn. In the instant case, the property of the land

losers/petitioners lie adjacent to the NH-4 since a portion

of the land is acquired by the National Highway Authorities

for the purpose of widening the Highway. Thus, the

property in question has a high potential and having

regard to the fact that the overhead line passes through

the middle of the land of the land losers/petitioners and

having regard to the fact that the National Highway

Authority has determined the market value at Rs.75/- per

sq.ft., it is appropriate in the present case too, having

regard to the peculiar facts and circumstances of the case,

the market value is determined at a sum of Rs.75/- per

sq.ft. Since the area covered by the overhead lines is

around 24 guntas of land and having regard to the fact

that the land losers/petitioners are deprived of the usage

of this area forever, they are entitled to compensation at

the rate of Rs.75/- per sq.ft. Since the tower is constructed

within 24 guntas of land, the question of granting any

compensation towards the area occupied by the tower

would not arise. Thus the land losers/petitioners are

entitled to a sum of Rs.19,60,200/- as compensation

towards the deprivation of the use of 24 guntas of land

belonging to them. The land losers/petitioners are entitled

to interest at rate of 12% p.a. from the date of drawing

the overhead lines till the date of payment.

Hence, the appeal filed by the land losers/petitioners

in W.A. No.373/2012 is allowed and the appeal filed by

the corporation in W.A.No.550/2012 is dismissed.

The parties to bear their own costs.

Sd/-

JUDGE

Sd/-

JUDGE

KGR*