Similarly the law was also considered by the Division Bench of Gujrat High Court and after discussing the various provisions of the Electricity Act and the Telegraph Act, the Division Bench of Gujrat High Curt has categorically held that the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003 on any ground whatsoever. Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognize the absolute powers of the respondent-company to proceed in laying of high tension electricity lines or electricity poles for transmission of electricity on or over the land belonging to the persons subject to the right of the persons to claim compensation, if any damage is sustained by them by reasons of laying such high tension lines. It is further held that neither the acquisition of land is necessary nor there is any need for consent of the land holders and, therefore, no mandamus can be issued restraining the respondent-company for proceeding with the erection of poles and transmission lines through the land of the petitioners.Print Page
Madhya Pradesh High Court
Lalchand Agrawal vs Union Of India on 23 March, 2015
The grievance of the petitioner is that respondent
No.5 has made a diversion of the route for erecting transmission line of high voltage electricity, and for the purposes of installation of towers of overhead electricity transmission line, is trespassing and using the agriculture land of th petitioners without their consent. It is alleged that while the route was sanctioned, a gazette notification was issued by the competent authority, the village of the petitioners and the land of the said village were not included in the said route for drawing of the electricity line. However, the respondents, more particularly the respondent No.5, has started the use of the land of the petitioners for which the complaint was lodged before the competent authority. No action whatsoever was taken by the police authorities to protect the property right of the petitioners, therefore, the present writ petition is required to be filed. The following reliefs are claimed on the basis of aforesaid pleadings:-
"7.1 To issue writ, direction, order in the nature of Mandamus restraining the respondent No.5 and their agents from interfering and trespassing the agricultural land of the petitioners in the name of installing the tower of overhead electricity transmission line.
7.2. To issue writ, direction, order in the nature of Mandamus to the police authorities to register the case on the complaint made by the petitioners for the commission of the offence committed by respondent No.5 and their agents.
7.3 To issue writ, order or direction for protection of agricultural land and life of the petitioners.
7.4 Any other appropriate writ, order or direction, which this Hon'ble Court deems just and proper, may also be passed in the interest of justice.7.5 Costs of the petition."
2. When the writ petition was listed on 18.6.2014, for certain reasons the learned counsel for the petitioners took time to amend the writ petition, made an application for amendment, which was allowed on 1.8.2014 and amendments in the pleadings have been done. A caveat was filed by the respondent No.5 and upon service of the notice, it appears that certain statements were made. Learned counsel for the petitioners again moved an application for amendment in the writ petition, which too was allowed on 19.12.2014. After furnishing the amended copy of the writ petition on the learned counsel for the respondent No.5, a return was filed categorically stating that the allegations made in the writ petition are wholly misconceived. It was pointed out that maps have been drawn, overhead electric line has to be laid for transmission of the high voltage electricity in between Dharamjaygarh to Jabalpur vide gazette notification issued by the Central Government on 12 th July, 2013 indicating the villages and the land in between the said villages, which was to be used for the purpose of laying down of the said electricity line. It is the contention raised in the return that such a notification has been issued in terms of the provisions of Section 164 of the Electricity Act, 2003 and for the said purposes, the powers provided under the Indian Telegraph Act, 1885 have been exercised by the competent government. It is, therefore, contended that the allegations made by the petitioners are not correct. It is contended that the village in which the land of the petitioners is situated falls between two villages mentioned in the said notification and, therefore, the electric line has to be drawn as per the sanctioned route.
3. Upon hearing of such objections and contentions, this Court has directed filing of additional affidavit by the respondent No.5 to show the alignment of the electric line specifically showing the villages, which have been included in that route. In answer to query raised by this Court, affidavit has been filed. The rejoinder has been filed by the petitioners and to explain the factual position, maps have been filed by the respondent No.5 with the application for taking additional documents on record.
4. It is contended by the learned senior counsel appearing for the respondent No.5 that issue involved in the present writ petition is squarely covered by the decision rendered by this Court, Bench at Indore, in somewhat similar circumstances. It is contended that the Division Bench of this Court in Writ Appeal No.299/2010-Vijay Agrawal vs. Power Grid Corporation of India Ltd. and analogous appeal has decided the controversy on 19.9.2011 wherein it has been categorically held that in terms of the provisions of the Telegraph Act as also under the provisions of theElectricity Act, the land can be utilized for the said purpose. The holder of the land would be compensated in terms of the provisions of the Act for which amount is to be sanctioned and disbursed. The claim made in the writ petition, which was already rejected, has been again rejected by the aforesaid order.
5. To meet out the submissions made by the learned senior counsel for the respondent No.5, it has been contended by the learned counsel for the petitioners that the issue involved in the present writ petition is not such which is covered by the decision rendered by the Division Bench of this Court in the writ appeal aforesaid. On the other hand, the law laid down by the Courts are to be examined and since only the quantum of damages was the subject matter of the writ petition filed at Indore Bench of this Court, which has ultimately been decided in the aforesaid writ appeal, the ratio of the law laid down by this Court in the aforesaid case would not be attracted in the present case where specific allegations are made with respect to the change of route with ulterior motive.
6. To buttress such submission, learned counsel for the petitioner has drawn attention of this Court to the gazette notification, which the respondent No.5 has placed on record as Annexure R.5/1. It is contended that when the villages were specifically mentioned in the said notification, the name of the village of the petitioner where their land is situated was deliberately not mentioned therein. If the lands of hundreds of villages are involved and all those names of villages are specifically mentioned in the gazette notification, more particularly in Sl. No.7, the name of the village of the petitioners was also required to be mentioned. This indicates that the transmission line was never proposed to be drawn overhead the land of the village of the petitioners. Again taking this Court to the various documents filed alongwith the rejoinder, it is contended that there was a specific certification by the Gram Panchayats. Pindrai that it was a separate Gram Panchayat and was not a part of any of the gram Panchayats of the villages mentioned in the gazette notification and, therefore, the Gram Panchayat concerned was required to be consulted. The land of the petitioners was agriculture land and the said land cannot be used without the consent of the petitioner for any other purpose much less to say the drawing of high tension electricity line. The said agriculture land of the petitioner would not be useful for the purpose of agriculture in case activity as proposed by the respondent No.5 is allowed on the said land. It is thus contended that in terms of the law, the land of the petitioner was required to be obtained and then only the work was to commenced to erect any tower for drawing the high tension electricity line.
7. The learned senior counsel for the respondent No.5 has vehemently contended that the notification issued by the competent government though specifically not includes the name of the village of the petitioners, but, since the village of the petitioners falls between the villages Hinotiya and Barha, it is deemed to be included under the notification as the approach to one village from the other as notified in the gazette notification would not be possible for drawing the high tension electric line. Thus, it is contended that there is no change of route as alleged. Further by pointing out the fact in the map, it is contended that the petitioners are trying to confuse the issue of drawing of high tension electric line to be drawn by the Power Grid Corporation of India Ltd., which is not the assignment to the respondent No.5. The assignment to the respondent No.5 is on different line and that being so the contentions raised in the writ petition are not to be accepted. Apart from this, the law is well settled that for the purposes of development and for the benefit of public at large, the land of individuals can be used, of course after the authorization by the competent government. It is contended that Gujrat High Court in somewhat similar circumstances has refused to entertain such a claim in the case of Vallabhbhai Patel vs. Chief Engineer (Project) Gujrat Energy Transmission and others in LPA No.882/2011 decided on 1.7.2011. It is contended that if the law is properly appreciated, it would be amply clear that the claim made by the petitioners is wholly misconceived.
8. After hearing the learned counsel for the parties at length and after going through the record as also the provisions of the Act and laws, it is clear that there is no diversion of the route for drawing the aforesaid electricity line by the respondent No.5. What in fact tried to emphasize is that though the route has been prescribed differently, but the electricity lines are drawn in different places and for that purpose though the land of the village of th petitioners is not included on the route so sanctioned, yet the same is being utilized. Such a submission of the petitioners cannot be accepted in view of the fact that the gazette notification issued on 12 th July, 2013 contains the villages, which fall within the route sanctioned for drawing the high tension electricity line. The relevant part of the gazette notification reads thus:
"S.O. 2146(E).-Whereas M/s Jabalpur Transmission Co. Ltd. (JTCL), the applicant with its Registered Office at Block C- 2, The Mira Corporate Suites, 1 & 2 Ishwar Nagar, Okhla Crossing, Mathura Road, New Delhi - 110065 has applied for authorization under Section 164 of the Electricity Act, 2003 for construction of 765 kV D/C, Hex Jabalpur-Dharamjaygarh Transmission Line and 765 kV S/c, Quad Jabalpur-Bina Transmission Line.
And whereas Government of India, Ministry of Power vide letter No.11/2/2010-PG dated 25.11.2010 had granted to M/s Jabalpur Transmission Co. Ltd. approval underSection 68 of the Electricity Act, 2003 for laying overhead transmission lines viz. Dharamjaygaarh-Jabalpur pool 765 kV 1xD/C line and Jabalpur pool-Bina 765 kV S/C line.
And whereas the applicant has now requested to confer upon him all the powers under Section 164 of the Electricity Act, 2003 which telegraph authority possess under the Indian Telegraph Act, 1885 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 for the works. The transmission line covered under the scheme will pass through, over, around and between the following villages, towns and cities:-
S.No. Name of Villages Tehsil District 7. Bahera; Bhapsa, Bilasar, Jabalpur, Jabalpur, Chandpur, Dhanwasi, Kisalpuri, Patan Madhya lutgaon, Mainpuri ------------------ Pradesh Silgor, Silgaur, Naga, Pahar, Kukrikhera, Nayagaon, Kukrikhedi, Kumhi, Hinotla, Basania, Hinotiya, Varha, Choukhada, Vasniya, Basania, Pipariya, Charghat, Muhas, Bahoripar, Dungariya, Bahoripar, Khursi, Harral, Dhona, Bhoripara. (abstracted by the Court) 9. Admittedly the village of the petitioners falls between the two villages Hinotiya and Varha,
Choukhada. It is not described by the petitioners that instead of going to their village, a route without any much expansion can be provided to reach the other village by drawing the high tension electricity line. If that is so, the allegation that the route has been changed or diverted by the respondent No.5 on its own cannot be accepted. In the map produced before this Court a specific line has been shown and it is pointed out that the respondent No.5 is working on the line which is shown and not on the line which is mentioned for the Power Grid Corporation of India Ltd. On this count as well the allegations levelled by the petitioners regarding the change of route cannot be accepted. Even otherwise, that would be a disputed fact, which at the best can be proved by adducing the evidence, which is not possible in a writ proceeding.
10. It is the statement made by the learned senior counsel for the respondent No.5 across the bar that only three towers were to be erected on the land of the village of the petitioners, one of which was to be erected on the land in dispute and two towers on the other sites. The other two towers have already been erected and there is no complaint or allegation in respect of erection of those two towers by the local residents of the village where the land of the petitioners is situated. Such a statement made by the learned senior counsel for the respondent No.5 has not been controverted or even denied by the learned counsel for the petitioners. Now in view of these circumstances, the pleadings of the petitioners in the writ petition are to be seen.
11. The petitioners have contended that they want to construct a school in the village very shortly over their land for imparting best modern education to the villagers. Admittedly this would not be the use of the land for which it is held, as the same is agriculture land. The development of an area depends on various other activities such as availability of the electricity. Drawing of high tension line for transmission of the electricity is necessary requirement for the modern development and for that if the land of the petitioner to some extent is being utilized for the benefit of public at large, it cannot be said that the land is being grabbed by the respondent No.5. As per the law, only for the purposes of erection of towers a part of the land would be used. Remaining land would be utilized by the petitioners. For the loss of agriculture, compensation is to be paid, but for future construction of a building for running a school, even a demand of compensation cannot be made. Keeping in view these facts, the relief as claimed in the writ petition cannot be granted to the petitioners.
12. The well considered opinion expressed by the Division Bench of this Court is that the law permits exercise of powers by the appropriate government for the said purposes in public interest. The provision of Section 164 of the Electricity Act, 2003 gives such powers to appropriate government to exercise the powers conferred under the Indian Telegraph Act, 1885. The rules have further been made in exercise of powers given under the Acts and those rules also confer powers on the appropriate government to use such private land. Though the claim made in the case of Vijay Agrawal (supra) was with respect to the compensation, but entitlement of compensation was considered in terms of the provisions of law and the object and purpose of exercising powers under the Electricity Act and Telegraph Act. The analogy drawn by the Division Bench is that in such circumstances, if the powers are exercised by the appropriate Government, it cannot be said that it is an arbitrary exercise of powers and, therefore, even the compensation in that respect cannot be granted to the land holders. That being so, the order passed by the Division Bench in the writ appeal of Vijay Kumar (supra) would be applicable in full force in the present case.
13. Similarly the law was also considered by the Division Bench of Gujrat High Court and after discussing the various provisions of the Electricity Act and the Telegraph Act, the Division Bench of Gujrat High Curt has categorically held that the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003 on any ground whatsoever. Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognize the absolute powers of the respondent-company to proceed in laying of high tension electricity lines or electricity poles for transmission of electricity on or over the land belonging to the persons subject to the right of the persons to claim compensation, if any damage is sustained by them by reasons of laying such high tension lines. It is further held that neither the acquisition of land is necessary nor there is any need for consent of the land holders and, therefore, no mandamus can be issued restraining the respondent-company for proceeding with the erection of poles and transmission lines through the land of the petitioners.
14. In view of the aforesaid discussion, the writ petition fails and is hereby dismissed. However, keeping in view the peculiar facts and circumstances of the case, the parties to bear their own costs.
(K.K. Trivedi) Judge shukla-