Letters Patent Appeal No. 882 of 2011 in Special Civil Application No. 3443 of 2011 and Civil Application No. 6165 of 2011 in Letters Patent Appeal No. 882 of 2011. Case: Himmatbhai Vallabhbhai Patel Vs Chief Engineer (Project) Gujarat Energy Transmission and 2 Ors.. High Court of Gujarat (India)

Case NumberLetters Patent Appeal No. 882 of 2011 in Special Civil Application No. 3443 of 2011 and Civil Application No. 6165 of 2011 in Letters Patent Appeal No. 882 of 2011
CounselFor Appellant: Sangeeta N. Pahwa, Adv. And For Respondents: S.P. Hasurkar, Adv.
JudgesS.J. Mukhopadhaya, C.J. and J.B. Pardiwala, J.
IssueElectricity Act, 2003 - Sections 67, 67(1), 67(2), 69, 164, 185 and 185(2); Repeal Act; Indian Electricity Act, 1910 - Sections 12 to 16, 18, 19, 37, 51 and 53; Electricity (Supply) Act, 1948 - Sections 28, 29, 29(2), 42, 42(1), 42(2) and 69(1); Electricity Regulatory Commissions Act, 1998; Indian Telegraph Act, 1885 - Section 10; General ...
Judgement DateJuly 01, 2011
CourtHigh Court of Gujarat (India)

Judgment:

J.B. Pardiwala, J., (At Ahmedabad)

  1. In the present Appeal, the challenge by the Appellant -original writ Petitioner is to the judgment and order dated 22nd April 2011 passed by the learned Single Judge in Special Civil Application No. 3443/2011, whereby the learned Single Judge rejected the writ petition preferred by the Appellant herein - writ Petitioner.

  2. Brief facts giving rise to this Appeal can be summarised as under:

  3. Appellant is an agriculturist and owns certain parcels of agricultural land. On or around 1st April 2011, one of the officers of the Respondent No. 2 Company visited the agricultural land of the Appellant. The said visit was without any notice or intimation and during the conversation with the Appellant, the said officer informed the Appellant that the Respondent Company is going to erect polls for laying 66 K.V. overhead electricity line which would pass through the agricultural land of the Appellant and that, therefore, polls will have to be erected in the land of the Appellant as well.

  4. The Appellant asked for the document/proof/ authority granted in favour of the Respondent No. 2 Company to undertake the work of laying overhead lines. However, any satisfactory reply was not given. No consent of the Appellant as the land owner was obtained by Respondentno.2 Company nor any procedure as prescribed under the Electricity Act, 2003 was followed and, therefore, the Appellant objected to the decision of Respondent No. 2Company to erect polls passing through the land of the Appellant.

  5. Since the objection of the Appellant was not paid any heed to by the officers of the Respondent Company, the Appellant and few others identically situated persons came before this High Court by way of a writ petition challenging the action of Respondent No. 2. The principal contentions raised by the Appellant hereinbefore the learned Single Judge were as under:

    (a) that the action of the Respondents in proposing to erect polls for laying 66 K.V. overhead electricity lines passing through the agricultural land of the Appellant is arbitrary, illegal and in violation of the provisions of the Electricity Act, 2003. The main bone of contention in this regard was to the effect that the Respondents are bound to initiate appropriate proceedings for acquisition of the lands and the consent of the owners ought to have been obtained with prior notice before entering into their property;

    (b) the second contention was to the effect that public notice dated 29th July 2010 published by the Respondents in this regard makes reference of the provisions of Repeal Act and that names of the villages where lands are situated and/or their survey numbers are not mentioned therein and, therefore, the notice is of no consequence. The contention was that the area where the land of the Appellant herein is situated is not mentioned in the notification. To put it more elaborately, the Respondents cannot undertake works in that area which are not included, mentioned in the notice dated 29th July 2010.

    (c) the third contention before the learned Single Judge was to the effect that Respondent No. 3 Company is a transmission company and is not engaged in the business of supply of electricity under the Electricity Act, 2003, and that, therefore, cannot undertake the process of laying overhead electricity lines, without obtaining consent from the owner of the property, in view of the provisions contained under Rule 3 of "Works of Licensees Rules, 2006" framed in exercise of powers conferred by Section 67 of the Act, which, inter alia, provides that the licensee may carry out works with the prior consent of the owner for occupation of any particular building or land, however, any prior consent of the owner has not been taken by the Respondent Company.

  6. That the Respondent Company does not fall within the purview of Section 164, and that, therefore, the State Government could not have issued the notification conferring power of Telegraph Authority on the Respondent Company.

  7. Learned Single Judge dealt with all the above referred contentions canvassed by the Appellant exhaustively and ultimately came to the conclusion that there is no merit in any of the contentions canvassed by the Appellant and accordingly rejected the petition.

  8. We have heard learned advocate Mrs. Sangeeta Pahwa appearing for the Appellant - original Petitioner and learned advocate Mr. S.P. Hasurkar appearing for the Respondents. We have also perused the record and we have also gone through the judgment and order passed by the learned Single Judge, which has been impugned in the present Appeal.

  9. We are in complete agreement with the reasoning's assigned by the learned Single Judge while holding that there is no merit in any of the contentions put forward by the Appellant. However, keeping in mind the importance of all these issues, we have decided to look into them in little detail and we would like to express our own opinion in this regard. We would also like to state that all the contentions which have been recorded above and which did not find favour with the learned Single Judge have been reiterated before us in this Appeal.

  10. We shall deal with the first contention as regards obtaining of consent of the land owner before erecting polls for electricity lines. The Electricity Act, 2003(Central Act 36 of 2003) has been enacted consolidating the laws relating to generation, transmission, distribution, trading and use of electricity and thereby repealing the Indian Electricity Act, 1910, Electricity (Supply) Act,1948 and Electricity Regulatory Commissions Act, 1998. The said Act came into force w.e.f. 10.06.2003.

  11. The material on record shows that in exercise of powers conferred under Section 164 of the Electricity Act, 2003, the Government of Gujarat issued Notification dated 5th January 2007, thereby conferring upon the Gujarat Energy Transmission Corporation Limited the powers for placing electric supply lines or electric plants for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works with the Telegraph Authority possess under the provisions of the Indian Telegraph Act,1885. In exercise of the said powers conferred under the Notification dated 5th January 2007, the Gujarat Energy Transmission Corporation Limited issued public notice dated 29th July 2010, which was also published in the Gujarat Government Gazette Part-II, notifying its proposal to erect transmission lines. The relevant portion of the public notice dated 29th July 2010 is reproduced herein below, which reads as under:

    PUBLIC NOTICE

    Preliminary Notification of proposed Scheme (under Section-29 and 42 of the Electricity Act (1948).

    Ref. No.: CE(Pro.)/III/7497/2010: In pursuance ofSection-29 Sub-section I and Section-42 of the Electricity Supply Act, 1948, it is hereby notified that the Gujarat Energy Transmission Corporation Limited proposed to undertake the following Schemes and shall have and shall exercise for the placing of any wires, poles, wall brackets, stays apparatus and appliances for Transmission and Distribution of Electricity or for Transmission of telegraphic or telephonic communication necessary for proper coordination of the works of the Gujarat Energy Transmission Corporation Limited, in the area indicated in the relevant clause below, all power which Telegraph Authority possesses, under Part-III of Indian Telegraphic Act, 1885 (XIII:1885) with regard to a telegraph established or maintained and the Gujarat Energy Transmission Corporation Limited shall not be bound by the provision of Section-12 to 16, 18 and 19 of the Indian Electricity Act, 1910 for the purpose of this Scheme."

    Any license or any other person interested are hereby notified to make representation of objections, if any, to the Gujarat Energy Transmission Corporation Limited, Sardar Patel Vidhut Bhavan, Race Course, Vadodara390007, on or before completion of two months after publication of this Notice for consideration of the Nigam. For further particulars or clarifications, the Chief Engineer (Pro.), Gujarat Energy Transmission Corporation Limited, Sardar Patel Vidyut Bhavan, Race Course, Vadodara-390007 or the Superintending Engineer (Transmission Circle), GETCO, Navsari/Gondal, Nadiad, may please be contacted.

  12. It is evident on plain reading of the public notice that objections were invited from license or any other person interested on or before completion of two months after the publication of the notice for consideration of the Nigam. It is an undisputed position that no objections were raised at the relevant point of time in response to the public notice dated 29th July 2010.

  13. As noticed above, prior to the enactment of the Electricity Act, 2003, the Indian Electricity Act, 1910, and the Electricity (Supply) Act, 1948 were in force and there were various provisions governing erection of transmission lines or other connected work through, in or upon or under the private lands.

  14. As per Section 12 of the Indian Electricity Act, 1910, the consent of the local authority or of the concerned owner or occupier is necessary to enable the licensee to lay down or place any electric supply line or other work in, through or against any building or on, over or under any land not dedicated to public use whereon any electric supply line or work has not already been lawfully laid down by such licensee. Under Section 51 of the Electricity Act, 1910, it was permissible for the Government to confer upon any public officer, Transmission Utility, Transmission Licensee or any other person engaged in the business of transmission or supplying energy to the public, any of the powers which the telegraph authorities possess under the Indian Telegraph Act, 1885 for the placing of electric supply lines

  15. That apart, Section 28 of the Electricity (Supply) Act,1948, provided for preparation of a sanctioned scheme relating to...

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