Tripura High Court
North East Transmission Company ... vs Khalek Mia And Another on 1 August, 2024
Page 1 of 7
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
CRP No.32 of 2023
North East Transmission Company Limited
...... Petitioner(s)
VERSUS
Khalek Mia and another
...... Respondent(s)
For Petitioner(s) : Mr. Abhishek Puri, Advocate,
Mr. K.D. Singha, Advocate.
For Respondent(s) : Mr. Somik Deb, Sr. Advocate,
Mr. H. Sarkar, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
=O=R=D=E=R=
01/08/2024
By the impugned judgment dated 21.12.2022 passed by the
learned Court of District Judge, Gomati District, Udaipur on the claim for
compensation against damage caused due to laying down of 400 KV Double
Circuit Palatana-Surjamaninagar/Churaibari Transmission Line through the
claimant's land, under the Indian Telegraph Act, 1885 in respect of one of
the four notices dated 12.03.2011 compensation of Rs.42,38,872/- along
with interest at the rate of 6% per annum has been awarded till payment, if
not paid within 60 days from the date of the judgment. The computation of
the compensation includes not only damage to the trees but also
compensation against 26 square meter of land covering the base of the tower
at the fair market value on principles of acquisition of land taking into
account the previous acquisition of land for NHAI for expansion of NH-44.
The learned District Judge was under a direction of this Court vide order
dated 25.04.2014 read with order dated 31.05.2014 passed in WP(C) No.53
of 2014 (Annexure-2).
[2] By the order dated 25.04.2014 the learned Writ Court directed
as under:
"Mr. Datta Majumder, learned GA has fairly submitted that in the case of the
petitioner an inappropriate procedure has been followed. However, the petitioner has
received the awarded compensation without raising any objection.
Be that as it may, it is directed that the respondent No.2 shall transmit all records
along with a copy of this order to the District Judge, South Tripura within a month
from today for the purpose of determining the compensation in terms of the
judgment and order dated 23.07.2013 as reproduced. For that purpose, the petitioner
is directed to furnish a copy of this order to the respondent No.2 within a period of 7
days from the date of receipt of the certified copy from the Registry.
It is made clear that the amount that has been received by the petitioner shall be
adjusted on determining the compensation by the District Judge.
It goes without saying that against the claim where no compensation has been paid
the compensation would be determined by the District Judge in accordance with law.
The procedure as explained in the judgment dated 23.07.2013 shall be followed for
determining the compensation. The parties may advance their claims in terms
thereof.
Accordingly, this petition stands allowed to the extent as indicated above. There
shall be no order as to costs."
[3] The judgment and order dated 23.07.2013 referred to in the
operative part of the order relates to the case of Sri Ajit Nag versus State of
Tripura and others in WP(C) No.30 of 2012 and analogous cases. The
operative portion of the order passed in Ajit Nag's case dated 23.07.2013 is
also worthy of being extracted hereunder:
20. In this context of the matter, this Court is of the opinion that in terms of the
provisions of Section 164 of the Electricity Act, 2003 as interpreted by the apex
court in Livisha (supra), read with Section 16(3) and (4) of the Indian Telegraph Act,
1885 and for purpose of assessing the just and reasonable compensation in terms of
the action as reflected in the impugned notice at Annexure P-1 collectively in
W.P.(C) No. 30/2012 and the impugned notices at Annexure P-2 in W.P.(C) No. 521
of 2011, W.P.(C) No.521 of 2011 and W.P.(C) No.521 of 2011, the matters shall be
referred to the District Judge, South Tripura, Udaipur as the land concerned in all the
writ petitions are situated within the territorial jurisdiction of the District Judge,
South Tripura, Udaipur. The District Judge shall assess the due compensation
following the principles and procedures of the Land Acquisition Act deeming this
reference as if made under Section 18 of the Land Acquisition Act, 1894. Needless
to say, the parties before this Court would be at liberty to submit their respective
claims without prejudice to what they have stated in their affidavits filed before this
Court. The parties would be allowed to adduce evidence in support of their
respective claims and thereafter, the District Judge, South Tripura, Udaipur would
determine the matter and pass the award as would deem proper in the fact and
circumstances. The respondent No.2 shall be at liberty to deposit the amount as
mentioned in the cheques as referred in Annexure-P/1 collectively in W.P.(C) No.
30/2012 and Annexure P/2 in W.P.(C) No. 521 of 2011, W.P.(C) No.521 of 2011
and W.P.(C) No.521 of 2011, before the District Judge, South Tripura, Udaipur. The
said amount shall be immediately released to the petitioners by the District Judge
without prejudice to their claim including the claim of interest. Accordingly, it is
ordered. The respondent No.2 shall transmit all records alongwith a copy of this
order to the District Judge, South Tripura within a month from today.
21. With this observation and direction, all these writ petitions being WP(C) No.30
of 2012, WP(C) No.521 of 2011, WP(C) No.522 of 2011, WP(C) No.523 of 2011
stand allowed to the extent as indicated above. There shall be no order as to costs."
[4] The learned Writ Court in the case of Sri Ajit Nag (supra) had
in the operative part of the judgment directed the District Judge to assess the
due compensation following the principles and procedures of the Land
Acquisition Act deeming the reference as if made under Section 18 of the
Land Acquisition Act, 1894.
[5] In the present challenge, the first ground raised by Mr.
Abhishek Puri, learned counsel for the petitioner, North Eastern
Transmission Company Limited is as to the applicability of the principles
and procedures of Land Acquisition Act in determination of compensation
for laying down of transmission lines under the Electricity Act, 2003 and the
reference made therein to the Telegraph Act, 1885. Learned counsel for the
petitioner has also raised other grounds on the merits of the case. In support
of his submission, learned counsel for the petitioner has referred to Section
68, 69 and 164 of the Act of 2003. He submits that Section 164 of the Act of
2003 provides that the Appropriate Government may in writing for placing
of electric lines or electric plant for the transmission of electricity or for the
purpose of telephonic or telegraphic communications necessary for the
proper coordination 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 placing of telegraph lines and posts
for the purposes of telegraph established or maintained, by the Government
or to be so established or maintained.
[6] He has further referred to the provisions of Section, 3, 4, 10,
Section 10(d) and Section 16 of the Telegraph Act, 1885. It is submitted that
the Electricity Act, 2003 incorporates by reference the provisions of the
Telegraph Act, 1885 for the purposes of carrying out works relating to
laying down of transmission lines and determination of compensation, if
any, for the damage caused during that process under the provisions of the
Telegraph Act, 1885. Therefore, the direction of the learned Writ Court in
the case of Sri Ajit Nag (supra) to follow the principles and procedures of
the Land Acquisition Act in awarding compensation for damages caused
during laying of electricity transmission lines as per the principles and
procedures of the Land Acquisition Act deeming the reference as if made
under Section 18 of the Land Acquisition Act, 1894 was wholly without
jurisdiction. He, however, also fairly submits that in the case of the present
parties, the learned Writ Court had also in its order dated 25.04.2014 passed
in WP(C) No.53 of 2014 preferred by the claimants/respondents herein
directed the District Judge, South Tripura to determine compensation in
terms of the judgment and order dated 23.07.2013 i.e. in the case of Ajit Nag
(supra). The impugned judgment has followed the principles of Land
Acquisition Act, 1894 in awarding compensation for damage to trees and
certain area of land for fixation of the base tower of the transmission line,
but such determination on the basis of principles and procedures of the Land
Acquisition Act were wholly without jurisdiction.
[7] The learned District Judge was in seison of a claim petition for
damages caused to its crops/trees while laying down of the transmission
lines under the provisions of the Electricity Act, 2003 read with the relevant
provisions of the Telegraph Act, 1885. The principles and procedures of
Land Acquisition Act were not applicable for such purpose by the
parliament. In this context, he submits that the impugned judgment suffers
from jurisdictional error and in the above circumstances, the principles laid
down in the case of Ajit Nag (supra) should be treated as per incuriam and
suffers on the principles of sub silentio. He also submits that though the case
of Ajit Nag (supra) relies upon the judgment of the Apex Court in case of
Kerala State Electricity Board versus Livisha and others, reported in
(2007) 6 SCC 792, rendered in a case relating to transmission of electricity
lines but the said decision has been wrongly relied upon in the case of Ajit
Nag (supra) as laying down principles of compensation in the light of the
provisions of the Land Acquisition Act, 1894. Learned counsel for the
petitioner, therefore, submits that this Court may, therefore, deem it proper
to hold that the ratio of Ajit Nag's case being per incuriam and sub-silentio
should not govern the subject matter of the instant litigation concerning
laying down of transmission lines under the Act of 2003 read with the
relevant provisions of the Act of 1885. He relies upon the decision of the
Apex Court in case of A.R. Antulay versus R.S. Nayak and another,
reported in (1988) 2 SCC 602, in support of this submission. He has made
specific reference to paragraphs 36, 38, 42 50, 58 and 62 of the report. He
further submits that if the decision of the previous Bench is per incuriam on
a question of jurisdiction over the subject matter of the lis, this Court can
even in the instant proceeding proceed to hold that the application of
principles of Land Acquisition Act, 1894 in matters of award of
compensation for laying down transmission lines under the Act of 2003 read
with relevant provision of the Telegraph Act, 1885 are wholly without
jurisdiction. He further submits that if this Court may deem fit the matter
may be referred to a Larger Bench for decision on this point and
reconsideration of the law laid down in the case of Ajit Nag (supra).
[8] Mr. Somik Deb, learned senior counsel for the claimant has
objected to the submission made on behalf of the petitioner as to the
correctness and legality of the decision in Ajit Nag's case. He has also
submitted that the petitioner accepted the judgment dated 25.04.2014 passed
in WP(C) No.53 of 2014 in the present case between the same parties where
the learned Writ Court had directed the learned District Judge to determine
the compensation in terms of the judgment dated 23.07.2013 passed in the
case of Ajit Nag's case.
[9] Learned counsel for both the parties have submitted
comprehensive written notes.
[10] On the conspectus of the facts and the background taken note
above, since the correctness and legality of the judgment rendered by the
Coordinate Bench of this Court in the case of Ajit Nag (supra) so far as it
directs application of principles and procedures of Land Acquisition Act in
determining the compensation against damage caused due to laying down of
transmission lines under the Electricity Act, 2003 read with the relevant
provisions of Telegraph Act, 1885 has been raised and that the said decision
appears to have been followed in other cases for determination of
compensation under the Electricity Act, 2003, this Court is of the opinion
that the matter requires reference to a Larger Bench to consider whether the
ratio rendered in the case of Ajit Nag (supra) by the learned Writ Court
requires reconsideration.
[11] As observed hereinabove, since the ratio of Ajit Nag's case has
held the field so far, therefore, it would be appropriate that the matter is
heard by a Larger Bench. The correctness of the judgment passed in the case
of the present parties in the earlier round of litigation concerning the said
subject matter i.e. WP(C) No.53 of 2014 dated 25.04.2014 since it follows
the ratio of Ajit Nag's case also needs reconsideration. It goes without
saying that other issues on the merits of the case are open for the Larger
Bench to examine.
[12] Accordingly, let the matter be placed before the Hon'ble Chief
Justice in his administrative side to constitute a Larger Bench. Learned
counsel for both the parties to submit adequate number of Paper Books.
(APARESH KUMAR SINGH) CJ
DIPESH DEB Digitally signed by DIPESH DEB
Date: 2024.08.05 13:55:04 +05'30'
