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The petitioners undertake to affirm and stamp the petition/application as per Rules within one month of resumption of normal functioning of the Court. Subject to such undertaking, the application is taken up for hearing through video conference.
CAN 4859 of 2020 is disposed of.
The appeal is arising out of an order dated 4th August 2020 in connection with a writ petition filed by the appellant challenging an order passed by the District Magistrate under the Indian Telegraph Act on 11th March 2020. The District Magistrate passed the order on the basis of a representation made by the petitioner for relocation of the high‐tension lines so that the enjoyment of the petitioner over its property does not suffer from extreme prejudice. The District Magistrate considered the representation and refused change of route alignment on the ground that apart from the fact that it is a belated request, it is also not a viable idea as the alignment fixed by Power Grid Corporation was made on technical and other feasible considerations. Accordingly, the grievance of the petitioner for realignment of the proposed transmission line tower was declined.
Mr. Aniruddha Chatterjee, learned senior counsel appearing on behalf of the appellant has submitted that although the District Magistrate was required to decide the matter in accordance with Section 17 of the Indian Telegraph Act, 1885, but it would appear from the communication dated 12th March, 2020, the District Magistrate had exercised the power under Section 16 (1) of the Indian Telegraph Act, 1885. It is submitted that the District Magistrate has completely misdirected his mind in not taking into consideration that in a similar situation, the same authority had allowed realignment of the transmission line tower. It is submitted that it would appear from the tenor of the order that the District Magistrate has applied his jurisdiction under Section 16 and accordingly the considerations that are required to be taken in deciding an application under Section 17 were not applied thereby making the order untenable. Mr. Chatterjee accordingly has prayed for setting aside of the said impugned order of the District Magistrate and consequently, the impugned order passed by the learned Single Judge by which the transmission company was directed to proceed with the work subject to an undertaking being filed that in the event the writ petitioner succeeds the authority shall remove the Tower Grid No. 86A from the disputed land.
Mr. Bikash Ranjan Bhattacharya, learned senior advocate appearing with Mr. Saptangsu Basu on behalf of the transmission company has referred to the inspection report of the Powergrid Corporation of India Ltd. and submits that the order passed by the District Magistrate was in fact in exercise of power under Section 17 since it would be clear from bare reading of the order of the District Magistrate that the said authority was considering the prayer for realignment of the proposed transmission line tower and adequate compensation caused by the proposed construction of the transmission line over its respective plots. It is submitted that the reference to Section 16 in the communication dated 12th March 2020, is merely consequential which has to follow in the event there has been any obstruction caused by the writ petitioner or its men, servants or agents.
Mr. Bhattacharya submits that once an authority conversant with the technicalities of the matter filed a report and it appears that it would not be feasible to relocate the transmission line as requested by the writ petitioners, the Writ Court shall not interfere with such expert opinion and in this regard, Mr. Bhattacharya has relied upon the decision of the Hon'ble Supreme Court in Power Grid Corporation of India Ltd. vs. Century Textiles and Industry Ltd. & Ors., reported at (2017) 5 SCC 143, (paragraph 26).
We have read the order of District Magistrate carefully along with the inspection report which forms the part of the proceedings. It is clear from the order of the District Magistrate that the said authority was considering objections regarding realignment of the proposed transmission line tower over such certain plots of land of the writ petitioners. The District Magistrate rejected the said prayer with the following observations:‐ "Powergrid as transmission licensee is conferred with the powers of Telegraph Authority under Part III of Telegraph Act, 1885 and thus is authorised to lay down poles, wires, posts etc. upon, across, along over or under any immovable property as pear sec. 10 of the Indian Telegraph Act, 1885. Further, Sec. 10(d) of the Indian Telegraph Act, 1885, inter alia states that while laying down the poles, wires, posts etc. upon the land, Powergrid (Telegraph Authority) shall do as little damage as possible and shall pay full compensation for the damages sustained by the person. Further, Sec. 10(b) states that the land shall not be acquired while exercising the power under the Telegraph Act. So, the owners of the land at location No. (Tower No.) 86/0 & 86A/0 at P.S. Dhaniakhali are entitled to get damage compensation of trees/crops as per existing laws/rules and regulations as per market value as assessed by the relevant Govt. authorities and as stated on the date of hearing. However, the claim for change of route alignment by land owners of individualistic consideration at this belated stage is not a viable ideas as the alignment fixed by Powergrid Corporation was made on technical and other feasibility consideration."
It is thus clear from the above quoted paragraph that two things have weighed with the District Magistrate in refusing the prayer, firstly, the claim for change of route alignment by land owners was on individualistic consideration at a belated stage and secondly it is not a viable idea as the alignment fixed by the Power Grid Corporation was made on technical and other feasibility considerations.
Mr. Aniruddha Chatterjee, learned counsel appearing on behalf of the writ petitioners would join an issue here by referring to the order passed by a Single Judge on 1st July, 2019 in W.P. 9232 (W) of 2019 (M/s. Siddhi Vanayak Developers & Anr. Vs. Powergrid Corporation of India Ltd. & Ors.) and the order of the same District Magistrate, Hooghly on 30th September 2019 to argue that different considerations have played in this regard and has accordingly tried to impress upon this Court that the District Magistrate should revisit the issue and apply the same principle here applied in the order on 30th September 2019.
Since the issue has been raised of discrimination, let us now consider the order passed in M/s. Siddhi Vanayak Developers. In the writ application filed by the M/s. Siddhi Vanayak, the learned Single Judge after hearing the submission of the parties permitted the District Magistrate, Hooghly to exercise powers under Section 17 of the 1885 Act and consider the grievance of the petitioners regarding relocation of the high tension line so that the enjoyment of the petitioners over their property does not suffer from extreme prejudice. In disposing of the said application, the District Magistrate has found that the land was converted by an order dated 2nd January 2018 by which the land of M/s. Siddhi Vanayak Developers had been converted from sali to industry. The M/s. Siddhi Vanayak had given the Power Grid Corporation other route options for installation of tower vide their letter dated 22nd February 2019 over their property but which is outside their project area. But the Power Grid Corporation stated that these options are not technically feasible. However, they did not provide reasons why the other options were not technically feasible. Therefor, the question arises as to the sanctity of the present route alignment approval as submitted by the Power Grid Corporation. As opposed to it, in the instant case, we find that there has been no conversion of the lands in question, inasmuch as, there was no project which is likely to be affected in the event the transmission lines are allowed to pass over the property of the writ petitioner. The inspection report prepared by the Power Grid Corporation of India Limited would unmistakably show that the entire land/place is lying vacant and it is a paddy land. The route of the transmission line from Tower Location No. AP85/0 to AP87/0 is passing through paddy fields and foundation of Tower Location No. AP85/0 is completed and foundation and erection of the Tower Location No. AP 87/0 have been completed. The Tower Location No. AP85/0 is on one side of a railway track/crossing tower in which the foundation of transmission line tower have already been completed and the foundation on the other side of the railway track i.e. Tower No. AP86/0 & AP86A falls on the land of the petitioners.
Moreover three numbers of electrified Railway tracks are passing between tower locations No. AP85/0 & AP86/0. For crossing the railway tracks, POWERGRID has taken approval from the Railway Authority. After meeting the technical requirement of Railway Authority, the tower location nos. 85/0 and 86/0 were also freezed as per the drawing approved by Railway Authority. As per the technical specification for railway line crossing, angle between Railway track and the transmission line should be 90" and the span between two towers should be within 300 mtrs. Now the present span between tower location no. AP85/0 to tower location no. AP86/0 is 298 mtrs and angle of crossing is also 90".
If POWERGRID shifts tower location No. AP86/‐ and A:86A/0, there will be impact on both tower location no. AP85/0 and AP87/0. Both the towers were spotted as per the technical specification considering the maximum tolerance, thereafter the foundation of both towers were completed and erection of one tower was also completed. Further, near location No. AP86A/0, there is a Gas pipe lines passing as such it is not feasible to shift the tower nearer to the Gas pipe lines.
It is not in dispute that this report was under consideration before the District Magistrate. On the basis of the said report, in our view, the District Magistrate is justified in holding that it is neither feasible nor viable at this stage to allow the prayer of the writ petitioner. The mere reference to Section 16(1) in the communication does not rob the order of its true character as it appears that the order, in fact, is an order passed under Section 17 of the Act. What is important is the source and existence of the power and in deciding such an issue it has to be seen whether the authority concerned has exercised the power conferred upon the said authority under the Statute. It is immaterial whether a wrong section has been quoted in the communication when it would unmistakably show that the power excreted by the District Magistrate was under Section 17 of the said Act. Moreover, as we find that in Power Grid Corporation of India Limited (supra) the Hon'ble Supreme Court has categorically stated that in a matter like this one has to keep in mind that the Power Grid Corporation is an expert on the subject.
In view of the given facts and circumstances, we do not find, at this stage, that the action of the Power Grid by not shifting the transmission lines was arbitrary. From the facts mentioned above, it becomes apparent that it would not only be unfeasible at this stage to change the alignment as almost entire work has already been completed by the time the writ petitioner started protesting, even otherwise the Power Grid has given sufficient explanation to point out that all relevant factors/aspects were kept in mind while laying down the entire transmission lines. Such transmission lines had to be straight lines to the extent possible for eliminating the loss of transmission. The Court not being an expert would not ordinarily interfere with the findings of an expert body unless it is manifestly and patently illegal and without jurisdiction.
On such consideration, we do not find any reason to interfere with the impugned order. The appeal being MAT 504 of 2020 and the application being CAN 4886 of 2020 stand dismissed. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.