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Judgment
K.A. Puj, J.—Since common issue is involved in both these petitions, both the petitions are being heard and disposed of together by this common judgment and order.
Special Civil Application No. 2813 of 2010 is filed by two Petitioners. The Petitioner No. 1 is a national and citizen of India whereas the Petitioner No. 2 is a Trust registered under the Bombay Public Trust Act with the Charity Commissioner, Gujarat, for the object of imparting education and other similar activities. The Petitioner No. 1 is the owner and occupier of Block No. 1623 of moje Village Jetalpur, Taluka -Daskroi and District and Sub-District Ahmedabad, whereas land bearing Block No. 1596, is owned and occupied by the Petitioner No. 2 - Trust of moje Village Jetalpur, Taluka - Daskroi, District & Sub-District - Ahmedabad, and both the lands of the Petitioners are situated just opposite to each other across the Highway, called National Highway No. 8.
The Petitioner in Special Civil Application No. 2814 of 2010 is also a public trust, registered with the Charity Commissioner, Gujarat. The land bearing Block Nos. 1054, 1055, 1056, 1057, 1058, 1059, 1065, 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1066 and 1067 of moje Village Jetalpur, Taluka -Daskroi, District and Sub-District - Ahmedabad and the land in question bearing Block No. 1593, which is situated just adjoining, are owned and occupied by the said Trust, In the said land, the Trust is running Primary, Secondary and Higher Secondary Schools. Over and above the schools in the said premises, there are several colleges run and managed by the said Trust, namely, B.Ed., P.T.C., Government Hospital which is run and managed by the Trust situated in the said plots and one Degree Engineering College. Thus, it is an educational campus created by the Trust.
In both these petitions, the Petitioners have prayed for quashing and setting aside the impugned decision of Respondent No. 4 dated 22.02.2010 passed on the application made by Respondent No. 1 Company, dated 21.12.2009 and thereby quashing and setting aside the impugned decision of laying High Tension Power Lines passing through the lands of the Petitioners and thereby permanently restraining the Respondent Nos. 1 and 2 from laying down said High Tension Power Lines by erecting Towers on the land belonged to the Petitioners and further be pleased to direct the concerned Respondents to lay the High Tension Power Lines by shifting the same to Karaba land of the Government, which is available and is situated nearby to the lands belonged to the Petitioners.
This Court has issued Notice to the Respondents returnable on 10th of March, 2010 and it was directed that Respondent shall not enter the land of the Petitioners till the next date of hearing. The said interim relief was continued from time to time.
It is the case of the Petitioners that the Respondent Nos. 1 and 2 are the "State within the meaning of Article 12 of the Constitution of India. The Respondent No. 3 is appointed as contractor to lay down the disputed High Tension Power Lines, passing through Jetalpur area, where the land owned and occupied by the Petitioners are located, to erect electric towers. The Respondent No. 4 is the State Authority, who permitted Respondents to carry on the work of laying down High Tension Power Lines, It is also the case of the Petitioners that somewhere in the month of July, 2009, Officers of Respondent No. 1 along with Surveyor and Engineers of Respondent No. 1 company, other officers and Lineman of Respondent No. 3 -one Daulatbhai Dabhi have personally visited the lands of the Petitioners and appraised the Petitioners regarding the project contemplated by the Respondents to lay High Tension Power Lines passing through their lands and have collected soil sample of the land. They have informed that if the Petitioners have any objection for laying of High Tension Power Lines passing through their lands by erecting Electric Towers, they may do so by writing proper application addressed to Respondent No. 2. The Petitioners thereafter inquired into the office of Collector - Respondent No. 4 and learnt that several other farmers have also raised their objections against laying of High Tension Power Lines from private property, whereas the original project was to erect 400 KV Tower Station at Lamba Tekra, which is popularly known as ''Pirana-Dahej-Jetalpur'' and as per the original plan, said High Tension Power Lines was to be laid on Vijol-Lamba road parallel to the said road, so that No. private land is affected. However, said plan appears to have been changed and now it appears that Respondents have decided to lay High Tension Power Lines through private lands right from village Chausar leading towards village Jetalpur, which comprised of various private lands, including that of the Petitioners.
It is also the the case of the Petitioners that since somewhere in the month of July, 2009, Officers of the Respondents visited at the lands of the Petitioners, the Petitioners made a representation dated 24.09.2009 addressed to Respondent No. 2, inter alia, pointing out in detail to lay High Tension Power Lines from alternative site and not from the private lands of the Petitioners and other similarly situated persons, particularly, in view of the fact that, recently, said lands have been declared as ''Commercial Zone'' by Ahmedabad Urban Development Authority and finalization of Town Planning Scheme is under consideration of the Government which will be shortly finalized and, therefore, if such a huge power supply line is laid on the private lands of the Petitioners and other such affected persons having commercial value, which would amount to depriving the Petitioners without authority of law and without following any procedure known to law, particularly, when alternative site is available for laying High Tension Power Lines, which would strike the balance and would not affect any private property. It would also serve the purpose of Respondents and they would not be put to any inconvenience in continuing with their project of laying High Tension Power Lines.
It is the case of the Petitioners that the Petitioners have made several representations to the Respondent authorities, but No. action was taken by them with regard to the Petitioners grievance. The Petitioners have earlier preferred a petition, being Special Civil Application No. 10916 of 2009 wherein this Court has passed a common order on 18.12.2009, issuing following directions:
The Respondent company shall approach the Respondent No. 4 - District Magistrate within a period of one week from today.
After such an application is moved, it will be open to the Petitioners to raise contentions before the Respondent No. 4 - District Magistrate, which will be considered in accordance with law.
If the application is moved by the Respondent company within a period of one week, the Respondent No. 1 shall hear and decide the application within a period of eight weeks from the date of receipt of application after due consideration of the objections of the Petitioners.
This Court has not entered into the merits of the matter and, therefore, the Respondent No. 4 may not be influenced by the order of this Court.
It is also clarified that till the issue is decided by the Respondent No. 4, the field of the Petitioners shall not be entered into by the Respondent company.
Pursuant to the common Order passed by this Court on 18.12.2009, the Respondent No. 1 Company approached the Respondent No. 4 by application dated 21.12.2009, wherein it was prayed that, in the exercise of the powers u/s 16 of the Telegraph Act, 1885, the Power Grid may kindly be permitted to proceed ahead with the laying of transmission line from the lands of the objectors situated in village Jetalpur at the earliest. The Petitioners filed their objections before the Respondent No. 4 on 22.02.2010, giving details and elaborate reasons and also legal grounds stating that the action of the Respondent No. 1 Company is totally illegal, arbitrary, violative of principle of natural justice and without any application of mind. The Respondent No. 4, while deciding and passing the impugned order on the application of the Respondent No. 1 company, has not given proper opportunity of hearing to the Petitioners as provided u/s 171 of the Electricity Act, 2003, under which No. notice was issued to the Petitioners. The objections as directed by this Court were filed by the Petitioners and still No. proper hearing was given by the Respondent No. 4 while passing the impugned order. It is also the grievance of the Petitioners that the Respondent No. 4 has not given any reasons in his order and by cryptic order, rejected the objections raised by the Petitioners.
It is this order of Respondent No. 4 which is under challenge in the present petitions.
Mr. R.K. Mishra, learned Advocate, appearing for the Petitioners, in both these petitions, has submitted that the Respondent No. 4 has not called the Petitioners personally to hear them by issuing Notice u/s 171 of the Electricity Act. The most important thing about damage which the electricity lines are causing to the effect of the Petitioners, which are specifically stated in the report submitted by the Petitioners before the Respondent No. 4 along with their objections. The said report dated 08.04.2010 prepared by Dr. Neil is on the subject of ''Evidence that Electromagnetic Fields from high voltage power lines and in buildings, are hazardous to human health, especially to young children''. He opined in the report that the power lines should not be passed through the lands where the schools are situated and human beings are residing and the damages which the power lines would be caused are so much irreparable that in long term the children and the human beings residing over the area will not be able to recover from the damages due to the power lines which are passing over them. Mr. Mishra has further submitted that the Respondent No. 4 without considering the objections, without giving an opportunity of hearing to the Petitioners, even without issuing Notice to the Petitioners for hearing them, without application of mind and against the principle of natural justice, vide impugned Order dated 22.02.2010, decided the application of the Respondent No. 1 to the detriment of the Petitioners, once again rising cause of action to approach this Hon''ble Court by way of the present petition.
11.1 Mr. Mishra further invited attention of this Court to Rule 3 of the Works of Licensees Rules, 2006. The bare reading of Rule 3 of the Works of Licensees Rule, 2006, makes it clear that, prior to laying of a High Tension Power grid Line, the consent of the owner and occupier of the building/land is a condition precedent. The Respondents have not obtained any consent of the Petitioners. Right from the beginning, the Petitioners have objected to laying of such line for various reasons stated in the objections raised by the Petitioners before the District Magistrate. Once, consent is not given by an occupier of the building/land, it is incumbent upon the concerned Respondent to obtain permission in writing from the District Magistrate or the Commissioner of Police or any other Officer authorized by the State Government in this behalf. He has further submitted that even at the time of issuance of Notification in the Gazette, prescribing the procedure for laying such High Tension Power Grid Line, at various places including for present project, wherein one of the conditions specifically provides that the above authorization is subject to compliance by the Power Grid to the requirement of the provisions of Electricity Act, 2003 and the Rules made thereunder. He has further submitted that the Respondents should either the lay out plan by making suitable changes so as to avoid the possible damage apprehended by the Petitioners or to give full compensation prior to laying of lines because the land in question is a commercial zone declared by AUDA in 2002 and without following the procedure as contemplated under the Rules, the Respondent No. 1 cannot continue with the work contemplated by them.
11.2 Mr. Mishra further submitted that the project in question is a very huge project as contemplated and for the said purpose huge poles are required to be erected by providing considerable huge foundation of RCC structure on the land belonging to the Petitioners. As a matter of fact, when this fact came to be known to the present Petitioners and other people, the panchayat, on behalf of the village people, approached the Respondent No. 1 authority to suitably modify the route for lying such a High Tension Line as contemplated by the Respondent No. 1 and even suggested alternative route where a Government kharaba land facing parallel to the contemplated site of Respondent No. 1 to lay High Tension Line right from village Chausar till village Jetalpur, and if such a High Tension Line is laid on Government Kharaba land, it would not affect any of the private land of Petitioners and other farmers of village Jetalpur. However, the Respondent No. 1 remained adamant without any justification and, hence, the Petitioners constrained to approach this Court for appropriate relief.
11.3 Mr. Mishra further submitted that merely because the Respondent No. 1 is a high profile Government Company, cannot claim as a matter of right as if they are possessing the licence to carry out the work by laying High Tension Power grid Line through the private property of the Petitioners. Mr. Mishra in support of his submission has relied upon a decision of the Kerala High Court in the case of Valsamma Thomas Vs. Additional District Magistrate, Alappuzha and Another, wherein it is observed that the District Magistrate has to exercise its discretion judiciously. He has to pass the order u/s 16(1) of the Telegraph Act, after hearing the parties after taking such evidence as is required with regard to the objections raised. The order passed by the court should be a speaking order. The order should reflect the objections raised by the parties and the reasons given by the Magistrate for accepting or rejecting the same. The order should also reflect the materials relied on by the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by mala fides, this Court will not be justified in interfering with such orders. This Court, will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters.
11.4 Mr. Mishra submitted that the above procedures laid down by the Kerala High Court have not been followed by the Respondent No. 4. The impugned order was not served upon the Petitioners in time with a view to see that the same cannot be challenged by the Petitioners. The Respondent No. 4 was expected to consider the objections raised by the Petitioners with respect to exploring the possibility of alternative site to lay High Tension Power Lines or to fix compensation in respect of the land considering the site situation. However, the Respondent No. 4 has concluded the whole issue by stating that since the work in question involves public interest and national interest and private interest should suffer and sacrifice. Such a ruthless and insensitive approach adopted by the Respondent No. 4 is absolutely arbitrary, illegal and violative of principles of natural justice.
11.5 Mr. Mishra, therefore, submitted that the impugned order passed by the Respondent No. 4 cannot be sustained on any grounds and deserves to be quashed and set aside.
Mr. Mihir Joshi, learned Senior Counsel, appearing with Mr. Sunil S. Joshi for the Respondent Nos. land 2 and Mr. Nikunt Raval, learned Assistant Government Pleader for the Respondent No. 4 were heard.
Mr. Mihir Joshi has submitted that the Respondent No. 1 i.e. M/s Power Gird Corporation of India Limited is a Government Company, registered under the provisions of the Companies Act, 1956 and a licensee engaged in the business of Inter-State transmission of electricity under the Electricity Act, 2003. The Respondent No. 1 is a premium Central Government Organization, mainly engaged in establishment and operation of Regional and National Power Girds, to facilitate transfer of power within and across the regions. The Respondent No. 1 was specified as Central Transmission Utility of this country under the Electricity Act, 1910 and it is again notified as such after coming into force of Electricity Act, 2003. The Respondent has established a sub-station at Dehgam, inter alia, with a view to evacuate the power generated by Gandhar Gas Power Project-II of the National Thermal Power Corporation of India Limited in order to develop an integrated and efficient power transmission system network in the country.
13.1 Mr. Joshi further submitted that Ahmedabad is a major load centre in the northern part of Gujarat. To meet the growing power requirement of this area, a scheme i.e. Western Region System Strengthening Scheme-VI, which, inter alia, included development of a new 400/220 KV Sub-station with 630 MVA capacity at Pirana near Ahmedabad, was proposed and discussed in the 25th meeting of the Standing Committee on Power System Planning in Western Region, held on 30th of September, 2006 at CEA, New Delhi. In order to facilitate power supply (injection) at Pirana KV, direct interconnection between Pirana and Dehgam (existing) Grid Sub-station through a double circuit line was agreed in the said meeting. Further, to improve reliability in supply, the Pirana Sub-station would be required to be connected with Sugen (1148 MW) generation project of M/s Torrent Power Generation Limited through a 400 KV D/C line. In this way, Pirana would be directly connected with the Grid at one side and generation project at another side, to ensure reliability of supply. In addition, establishment of Pirana Sub-station would facilitate the long term requirement in this area.
13.2 Mr. Joshi further submitted that the Board of Directors of Power Grid, in exercise of powers delegated to it by the Government of India through its O.M. No. 11/36/97-FIN dated October 09, 1997 (modified subsequently through O.M. No. 18(24)/2003-GM-GL.65 dated August 5, 2005 from Department of Public Enterprises, Ministry of Heavy Industries and Public Enterprises), have accorded approval for Western Region System Strengthening Scheme-VI, in its 205th meeting held on January 30, 2008. The said project involves the establishment of transmission line i.e. Dehgam-Pirana 400 KV, 2 x 315 MVA Sub-station at Pirana. The estimated costs of the said project is Rs. 340.72 crores and the same is scheduled to be commissioned within 33 months from the date of investment approval.
13.3 Mr. Joshi further submitted that the Government of India, Ministry of Power, has granted prior approval to the Respondent No. 1 u/s 68 of the Electricity Act, 2003, for the installation of overhead lines under Western Region System Strengthening Scheme-VI persons interested for any damage sustained by them by reason of exercise of the said powers. It is also important to take note of proviso (b) to Section 10 of the Indian Telegraph Act, 1885, under which, the Central Government shall not acquire any right other than that of user only in the property under, over, along, across in or upon which the telegraph authority places any telegraph lines or posts. Thus, it is apparent that the powers u/s 10 of the Indian Telegraph Act, 1885 can be exercised without acquiring the land in question and the only right that can be exercised is the right of user in the property and for the purposes mentioned in that Section.
The above discussion makes it abundantly clear that Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraph Act, 1885 recognized the absolute power of the Respondent No. 1 to proceed with laying High Tension Electric Lines or electric posts for the transmission of electricity on or over the lands belonged to the Petitioners subject to the right of the Petitioners to claim compensation if any damage is sustained by them by reason of laying such High Tension Electric Lines, in other words, neither the acquisition of the lands is necessary nor there is any need for consent of the Petitioners.
The court has also considered the submission of Mr. Joshi that before transmission line is laid, the Respondent No. 1 undertook survey of route in three stages, namely, Reconnaissance (including walkover) survey, Preliminary Survey and Detailed survey. Various aspects were discussed, deliberated and thereafter, final decision was taken. The efforts made, procedure followed and exercise undertaken have been explained in great detail in the affidavit-in- reply filed on behalf of the Respondent Nos. 1 and 2. It provides complete answers to all the issues raised by the Petitioners. The allegations regarding mala fides and non-application of mind etc did not have any place, whatsoever in this case. The Petitioners'' submissions regarding alternative route will have No. basis at all as substantial work has been done by now. As per the details furnished before the court, 80% of the foundation and nearly 70% of erection of towers is completed. But for the present litigations, the entire project could have been completed as per the schedule.
The impugned order passed by the District Magistrate does not suffer from the vice of non-observance of principle of natural justice nor it is in any way contrary to the directions issued by this Court. The Respondent Nos. 1 and 2 have approached the Respondent No. 4 by way of an application. The Petitioners have filed their objections which were duly considered before passing such order. Considering the relevant statutory provisions, requisite sanctions and approvals and the settled legal position, the Respondent No. 4 has passed the just and proper order which does not call for any interference of this Court while exercising its writ jurisdiction under Articles 226 and 227 of the Constitution of India.
The decision of Kerala High Court in the case of Valsamma Thomas (supra) is of No. assistance to the Petitioners. In the present case, order passed by the District Magistrate is a speaking order. Objections received from the Petitioners are duly considered. Findings arrived at by him can never be said to be perverse nor it is mala fide exercise of powers. The Kerala High Court, therefore, in the end, rightly observed that the Court would not be justified in substituting its own opinion as the Court has not got technical expertise and, therefore, it should be slow to interfere with such matter. The decisions relied upon by Mr. Joshi are directly on the point. This Court had an occasion to deal with this issue earlier in Special Civil Application No. 3067 of 2010 decided on 09.03.2010, wherein after considering earlier two judgments of this Court in Jiviben Motibhai Patel (supra) and Jayantikumar Bhagubhai Patel and Anr. (supra), it is held that in view of specific powers conferred on the Respondents, the work undertaken by them is in conformity with the said authority and it cannot be said that they have undertaken the said work without taking into consideration all the pros and cons of the issues. The Andhra Pradesh and Jharkhand High Courts have also taken the same view as this Court in earlier matters as well as in the present matter, is taking.
In view of the above discussion, the Court does not find any substance or merits in any of these two petitions. Hence, both the petitions are accordingly dismissed. Notice discharged. Interim relief stands vacated. Request of extension of interim relief is also rejected. No. order as to costs.
Petition dismissed.