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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.P. DHARMADHIKARI & S.B. SHUKRE, JJ.
Jarnail Singh & Ors. – Petitioners
Versus
Maharashtra State Electricity Transmission Co. Ltd., & Ors. – Respondents
Writ Petition No.2538 of 2011
Decided On : 03-08-2015
ELECTRICITY TRANSMISSION LINE - CHALLENGE TO VALIDITY OF SECTION 164 OF THE ELECTRICITY ACT, 2003 - [EA, 2003, Section 164] - The court examined the validity of Section 164 of the Electricity Act, 2003, and relevant sections of Part-III of the Indian Telegraph Act, 1885. It held that the provision enabling the appropriate Government to empower a licensee or a transmission utility to exercise powers for the purpose of laying of electric lines did not violate principles of natural justice or fundamental rights guaranteed under the Constitution of India. The court also rejected the contention that the District Magistrate was not authorized to exercise powers under Sections 16 and 17 of the Indian Telegraph Act, 1885, in relation to the laying of the transmission line. The court upheld the impugned order passed by the District Magistrate, finding no perversity or absence of application of mind. It also dismissed the petitioner's claim that their right to livelihood and right to carry on occupation or business were affected by the location of the transmission line tower on their land, suggesting that any application for allotment of alternate land for similar activity should be considered by the Government in accordance with the law.
Fact of the Case:
The petitioners challenged the judgment and order granting permission to continue with the work of the electricity transmission line passing through their land, alleging violation of principles of natural justice and constitutional rights. The respondent, a state transmission utility, had formulated a scheme for transmission of power, which included erecting a tower on the petitioners' land. The District Magistrate granted permission to continue with the work and prohibited the petitioners from obstructing it, directing the respondent to pay compensation to the petitioners.
Finding of the Court:
The court upheld the impugned order, finding no perversity or absence of application of mind. It dismissed the petitioner's claim that their right to livelihood and right to carry on occupation or business were affected by the location of the transmission line tower on their land, suggesting that any application for allotment of alternate land for similar activity should be considered by the Government in accordance with the law.
Ratio Decidendi: The court held that Section 164 of the Electricity Act, 2003, and relevant sections of Part-III of the Indian Telegraph Act, 1885, did not violate principles of natural justice or fundamental rights guaranteed under the Constitution of India. It also upheld the authority of the District Magistrate to exercise powers under Sections 16 and 17 of the Indian Telegraph Act, 1885, in relation to the laying of the transmission line. The court dismissed the petitioner's claim regarding the impact of the transmission line on their right to livelihood and right to carry on occupation or business, suggesting that any application for allotment of alternate land for similar activity should be considered by the Government in accordance with the law.
Final Decision: The writ petition was dismissed, and the interim order was continued for a further period of four weeks to enable the petitioners to approach the Supreme Court for seeking appropriate relief. The court also directed that any application for allotment of alternate land for similar activity should be considered by the Government in accordance with the law.
S.B. Shukre, J.
1. 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 respondent 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.
2. 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.
3. 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.
4. 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.
5. 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,
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