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2011 (3) GCD 2636 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice J.B. Pardiwala
Himmatbhai Vallabhbhai Patel
Versus
Chief Engineer (Project) Gujarat Energy Transmission & Ors.
Letters Patent Appeal No. 882 of 20111—Decided on 01/07/20112
Indian Electricity Act, 1910 (Central Act 9 of 1910) — Sections 12 to 16, 18, 19, 51 — Electricity Act, 2003 — Sections 67, 67(2), 164, 185, 185(2)(b) — Electricity (Supply) Act, 1948 — Sections 28, 29(2), 42, 42(1) — Electricity Regulatory Commissions Act, 1998 — Works of Licensees 2006 — Rule 3 — Indian Telegraph Act, 1985 — Section 10 — Erecting polls for laying 66 kv over head electricity line in the land of appellant — In absence of appropriate proceedings for acquisition of land and without consent of appellant — Propriety of — Finding as to — On analysis of the provisions of the Act and Rules relating to erection of polls for laying electricity line Court held that respondent has absolute power to proceed with laying High Tension Electric lines or posts for the transmission of electricity on or over the lands belonging to petitioner — Subject to right of petitioner to claim compensation if any damage is sustained by them — Neither acquisition of the lands is necessary nor there is any need for consent of petitioners — The contention as regard omission of the name of the village and/or survey numbers of appellant land and make issues in this regard is also without force — The notice provides broadly the area through which the proposed over-head electricity line would pass and it is sufficient to meet the object of appellants — Court found no merit or justifiable grounds to entertain appeal.
Held :
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. [Para 38 (18)]
Relying and reading name and brief particulars of the scheme as provided at Serial No. 7 and the area of work, the appellant contends that there is no reference of the place where his land is situated. [Para 42]
In this context, it is pertinent to note that in view of the fact that in all entries in respect of all areas, the phrase used in the said notice is “area around and between .....” and the names of all villages or any specific area or specific survey number through which the land is to be laid i.e. the area and survey number forming part of the route are not necessarily to be mentioned with all details in the notice. [Para 43]
Learned Single Judge has rightly held that the notice merely broadly describes the area through which the proposed overhead electricity line would be passing i.e. proposed route of the line would be passing. [Para 44]
Court dose not find any merit even in this contention. [Para 45]
In the aforesaid view of the matter, the impugned action of the respondents cannot be held to be arbitrary, illegal or contrary to the provisions of the Electricity Act, 2003 on any ground whatsoever. Section 164 of the Electricity Act, 2003 read with Section 10 of the Indian Telegraphs Act, 1885 recognized the absolute power of the respondent Company to proceed with laying high tension electric lines or electric polls for the transmission of electricity on or over the lands belonging to the appellant herein subject to the right of the appellant to claim compensation if any damage is sustained by him by reason of laying such high tension electric lines. In other words, neither the acquisition of lands is necessary nor there is any need for consent of the appellant. Hence, no mandamus can be issued restraining the respondent Company from proceeding with the erection of polls and transmission lines through the land of the appellant. However, this shall not preclude the appellant to claim compensation by working out the appropriate remedy as available under law in case any damage is sustained to his property. [Para 50]
Law Laid Down :
Principles of natural justice can be read into a statute which is silent unless a statutory provision specifically dispeurces with.
J.B. Pardiwala, J.—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:—
1. 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.
2. 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 Respondent No. 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. 2 Company to erect polls passing through the land of the appellant.
3. 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 herein before 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.
4. 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 Co
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