Writ Petition No. 2538 of 2011. Case: Jarnail Singh Vs Maharashtra State Electricity Transmission Co. Ltd., Nagpur. High Court of Bombay (India)
| Case Number | Writ Petition No. 2538 of 2011 |
| Counsel | For Petitioner: R. P. Joshi, Adv. and For Respondents: S. P. Dharmadhikari, Senior Adv. D. M. Kale, B. H. Dangre Government Pleader, Rohit Deo, assistant solicitor General India, Advs. |
| Judges | B. P. Dharmadhikari , J. and S. B. Shukre, J. |
| Issue | Constitution of India - Articles 14, 21, 300A; Telegraph Act (13 of 1885) - Sections 10, 16, 17; Electricity Act (36 of 2003) - Section 164; Works of Licenses Rules (2006) - Rule 3(4)(1) |
| Citation | AIR 2015 BOM 283 |
| Judgement Date | August 03, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
S. B. Shukre, J.
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By this petition, the petitioners have challenged the judgment and order dated 13.5.2011 passed by the District Magistrate, Nagpur in Case No. 9/MRC11/2009-10 thereby granting permission to res-pondent No. 1 to continue with the work of the electricity transmission line from Koradi to Wardha Power Grid, which passes through the land of the petitioner. In doing so, the petitioners have also challenged the entire action of respondent No. 1 in laying the transmission line as being arbitrary and violative of principles of natural justice. The petitioners have also challenged the validity of Section 164 of the Electricity Act, 2003 (hereinafter referred to as "EA, 2003" for the sake of convenience), the Govt. Resolution dated 24.8.2006, first proviso to Rule 3(1) and Rule 3(4) of the Works of Licenses Rules, 2006 (hereinafter referred to as "Rules, 2006" for the sake of convenience) framed under the EA, 2003 as according to the petitioners these provisions violate their fundamental rights guaranteed under Articles 14, 19 and 21 and also their constitutional right to property arising from Article 300A of the Constitution of India.
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The petitioners are the owners of the land bearing Gat/Survey No. 110, admeasuring 5.79 Hectares situated at Mouza Metaumri, Tq. Hingna, District Nagpur, wherein the petitioners have a stone crusher unit and a hot mix plant.
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The respondent No. 1 is a company registered under the provisions of the Companies Act and is owned by the State of Maharashtra. It is a state transmission utility and also a licensee as declared under Sections 38 and 14 of the EA, 2003.
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There is a power generation unit set up under an explanation project at Koradi Thermal Power Station. The electricity generated at the said unit is required to be evacuated and transmitted across the State by constructing and establishing the power transmission line. Therefore, the respondent No. 1 formulated a scheme for transmission of power by constructing and establishing 400 KV Koradi II to Wardha Power Grid Double circuit transmission line. This scheme has been approved by the State of Maharashtra. Under the scheme, the transmission line passes through various locations including the land belonging to the petitioners. One of the towers being tower No. 34/5 is planned to be erected on the land of the petitioners for the said purpose. One notice dated 12.3.2010 in respect of the proposed tower was issued to the petitioners. The petitioners by reply dated 17.3.2010 took an objection over the proposed erection of the tower on the ground that the situation of the tower was such as to divide land of the petitioners into two halves rendering it useless for carrying on their activities relating to stone quarrying. Therefore, it was suggested by the petitioners that the location of the proposed tower be shifted to the corner of the land so that the transmission line could along the boundary of the land or "pandhan". This way, the petitioners submit, the purpose of the respondent No. 1 would be served and at the same time least damage and inconvenience would be caused to the petitioners.
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The respondent No. 1, however, did not give any reply to the said suggestion of the petitioners, rather it went ahead with implementation of the project of laying of transmission line. It is stated that as there was obstruction to this work from the petitioners, a police report was also filed. As it appears that the implementation of the scheme could not proceed smoothly because of the obstruction created by the petitioners, respondent No. 1 moved an application under Section 16(1) of the Indian Telegraph Act for permission to continue with the work of transmission line before the District Magistrate, the authority designated for the purpose under the provisions of the Indian Telegraph Act, 1885 (hereinafter called "the Act, 1885" for short). It was submitted by the respondent No. 1 that in exercise of it's powers under Section 164 of the EA, 2003, the State Government conferred on the respondent No. 1, for the purpose of laying of electrical lines and posts for transmission of electricity, all powers which the telegraph authority would possess with respect to placing of telegraph lines and posts under Part III of the Act, 1885 and, therefore, the District Magistrate would have the authority under Section 16(1) of the said Act, 1885 to decide the justifiability of the objections taken and suggestions given by a land owner.
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The application so filed by the respondent No. 1 under Section 16(1) of the Act, 1885 was resisted by the petitioners by filing their detailed reply. Apart from taking same grounds as contained in their reply dated 17.3.2010 sent to the notice dated 12.3.2010, the petitioners contended that they were not consulted before finalizing the route of transmission line and suggested that the site of tower that was to be erected be shifted to the border of the land so that the land could be beneficially used and laying of transmission line is also not affected.
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During the pendency of the application, under Section 16(1) of the Act, 1885, the District Magistrate directed the respondent No. 1 to take inspection so as to consider the suggestion of the petitioners and submit it's report. Accordingly, the respondent No. 1 submitted the report stating that the foundations of the towers following and preceding the tower in question i.e. tower No. 34/5 being already complete, it was not possible to realign the transmission line in the manner suggested by the petitioners. It also submitted in the report that no mining activities were being carried on the subject land. It was, therefore, submitted that deviation of the transmission line was not feasible. During the pendency of the application filed by the respondent No. 1 under Section 16(1) of the Act, 1885, the petitioners had also filed an application under Section 17 of the said Act whereby the petitioners had prayed for issuance of directions to shift the transmission line elsewhere. The District Magistrate heard the parties and after considering the rival arguments and the report of the respondent No. 1, rejected the suggestion of the petitioners and allowed the application of respondent No. 1 filed under Section 16(1) of the Act, 1885 by the order passed on 13th May, 2011. By this order, the District Magistrate granted permission to respondent No. 1 to continue with the work of the transmission line as per the original plan. By the same order, the District Magistrate also prohibited the petitioners from obstructing the work and directed the respondent No. 1 to pay the requisite compensation to the petitioners in accordance with law within a period of one month from the date of completion of work. The present petition challenges this order of learned District Magistrate and also validity of Section 164 of the EA, 2003, Government notification dated 24.8.2006; first proviso to sub-rule (1) and sub-rule (4) of Rule 3 of the Rules, 2006 as being violative of petitioners' fundamental rights under Articles 14, 21 and 19 and his further right under Article 300A of the Constitution of India.
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We have heard Shri R.P.Joshi, learned counsel for the petitioners, Shri S.P. Dharmadhikari with Advocate Shri D.M. Kale, learned counsel for respondent No. 1, Mrs. B.H. Dangre learned Government Pleader for Respondent No. 2 and Shri Rohit Deo, learned Assistant Solicitor General of India for respondent Nos. 3 to 5. We have perused the paper book of the petition with the assistance of learned counsel for the contesting parties.
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It is submitted by the learned counsel for the petitioner that the decision regarding finalizing of route of transmission line has civil consequences for the owners of the lands from and over which the transmission line passes and, therefore, it would be necessary for the respondent No. 1, the licensee, which is carrying out the work to at least consult the affected owners of the lands before fixing the route. He further submits that such prior consultation is all the more necessary in view of the provisions of of Section 67 of the EA, 2003. He submits that in the instant case, the only notice that was issued to the petitioners was of 12.3.2010 and it was under the provisions of the Act, 1885 and not under the EA, 2003 and, therefore, no notice, as contemplated under the provisions of the EA, 2003 was issued to the petitioners.
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Learned counsel for the respondent No. 1 as well as learned A.S.G.I. and learned G.P. submit that the scheme of the provisions of the EA, 2003 does not contemplate issuance of notice to affected owners of the immovable properties at the time of finalization of the transmission line and for doing of any such work as erection of towers or posts upon the lands in question and all that is contemplated is giving of hearing to the affected land owners when any objection is taken or any suggestion is given and that too only for considering the justifiability of the objection taken or the suggestion given in respect of carrying out of work on their lands. For this submission, they place their reliance on the judgment of the Division Bench of this Court rendered in the case of Shri Vivek Brajendra Singh v. State Government of Maharashtra and others, reported in 2012(3) All MR 130: (2012 (3) AIR Bom R 152), which according to learned counsel for the respondent No. 1 has been confirmed by the Hon'ble Supreme Court when it disposed of the SLP filed against it.
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Before we consider the rival arguments, it would be necessary to know the source and scope of the authority or power of the respondent No. 1 to take up the work of the implementation of the scheme of laying of transmission line. Action taken by the appropriate Government in pursuance of the power given to it under Section 164 of the EA, 2003 constitutes the source of the authority. Part-III of the Act, 1885, supplies the contents of the said authority or...
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