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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Torrent Power Limited – Appellant
Versus
Collector And District Magistrate, Patan – Respondent
R/Special Civil Application No. 25785 of 2022
Decided on : 15-02-2023
The petitioner, a solar project developer, challenged the orders passed by the Deputy Collector and the District Magistrate, assessing the compensation payable to the private respondents for the damage caused to their land due to the installation of transmission lines and towers, and refusing permission to execute the projects, respectively. The petitioner contended that it was authorized to lay down transmission lines under the provisions of the Electricity Act, 2003, and the Telegraph Act, 1885, and that the compensation was computed at the relevant point of time in accordance with the guidelines set out by the Government of Gujarat. The private respondents, on the other hand, argued that the compensation should be determined in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act). The court held that the petitioner was only a user of the land and there was no land acquired for the purposes of the project, and that the assessment of compensation was the domain of the District Judge under section 16(3) of the Telegraph Act. The court also held that the provisions of the 2013 Act were not applicable in the present case as there was no acquisition of land. Accordingly, the court quashed and set aside the impugned orders and directed the respondents to permit the petitioner to exercise its powers as telegraph authorities for the erection of transmission lines and towers.
Fact of the Case:
The petitioner, a solar project developer, was authorized to lay down transmission lines under the provisions of the Electricity Act, 2003, and the Telegraph Act, 1885. The petitioner computed the compensation payable to the private respondents for the damage caused to their land due to the installation of transmission lines and towers in accordance with the guidelines set out by the Government of Gujarat. The private respondents, however, contended that the compensation should be determined in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act). The Deputy Collector assessed the compensation payable to the private respondents, and the District Magistrate refused permission to the petitioner to execute the projects.
Finding of the Court:
The court held that the petitioner was only a user of the land and there was no land acquired for the purposes of the project, and that the assessment of compensation was the domain of the District Judge under section 16(3) of the Telegraph Act. The court also held that the provisions of the 2013 Act were not applicable in the present case as there was no acquisition of land.
Issues: 1. Whether the petitioner was authorized to lay down transmission lines under the provisions of the Electricity Act, 2003, and the Telegraph Act, 1885? 2. Whether the compensation payable to the private respondents should be determined in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act)? 3. Whether the provisions of the 2013 Act were applicable in the present case?
Ratio Decidendi: 1. The court held that the petitioner was authorized to lay down transmission lines under the provisions of the Electricity Act, 2003, and the Telegraph Act, 1885, as it was conferred with the powers of a telegraph authority under section 164 of the Electricity Act. 2. The court held that the compensation payable to the private respondents should not be determined in accordance with the provisions of the 2013 Act, as there was no acquisition of land in the present case. 3. The court held that the provisions of the 2013 Act were not applicable in the present case as there was no acquisition of land.
Final Decision: The court quashed and set aside the impugned orders and directed the respondents to permit the petitioner to exercise its powers as telegraph authorities for the erection of transmission lines and towers.
JUDGMENT :
1. Rule returnable forthwith. Mr. Rohan Shah, learned AGP appearing for respondent State and Mr. Devdip Brahmbhatt, learned advocate appearing for the private respondents waive service of notice of rule. Heard learned advocates for the respective parties.
2. By way of this petition, under Article 226 of the Constitution of India, the petitioner – Torrent Power Limited has challenged the orders dated 12.10.2022 and 05.01.2023. By the order dated 12.10.2022, the respondent no. 2 has, while exercising powers under Section 16(3) of the Indian Telegraph Act, 1885 (for short ‘the Telegraph Act’) assessed the amount of compensation that needs to be paid to the respondent nos. 3 to 15 and vide order dated 05.01.2023, the petitioner company has been refused protection sought by it under Section 16(1) of the Telegraph Act.
3. Facts in brief are as under:
3.1 It is the case of the petitioner that it had been awarded two solar projects, one of 100 MW capacity by Gujarat Urja Vikas Nigam Limited and the other of 150 MW capacity by Torrent Power Limited – Distribution. These projects involved construction of two solar plants at Jakhotra and Babra. For the purposes of these projects, it was necessary to supply overhead transmission lines which were approximately over a distance of 24.5 kms. These transmission lines as well as a total of 80 transmission towers would have to pass through the villages of Charanka, Aluvas, Patanka, Babra, Bavarda Bakutra, Dhokavada, Barara and Jakhotra in District Patan.
3.2 For the purposes of the project, therefore, the petitioner approached the Government of Gujarat for granting approval under sections 68 and 164 of the Electricity Act, 2003 which approval was granted by the State vide order dated 27.10.2021. The orders for each of the projects respectively are annexed to the petition. Having been entrusted with the powers under section 164 of the Electricity Act and therefore being invested with the powers under the Telegraph Act, the petitioners on 17.12.2021 addressed a letter to the District Magistrate and the Collector’s office at Patan informing the Collector’s Office that having been conferred with powers under sections 68 and 164 of the Electricity Act, the projects needed to be implemented. That the lines were to pass through the areas around the villages falling within the jurisdiction of the Collector. They therefore needed police protection and to see that there is no obstruction at the site. One such letter was also addressed to the authorities on 26.05.2022. It is the case of the petitioner that when such permission was sought for, the respondents no. 1 and 2 by the impugned orders dated 12.10.2022 passed an order which tantamounted to determining compensation which was otherwise within the jurisdiction of the District Magistrate under section 16(3) of the Telegraph Act.
3.3 The order of 12.10.2022 is therefore challenged in a petition which was initially filed and this court issued a notice to the respondents by recording the submissions of learned Senior Advocate Mr. Mihir Thakore on 19.12.2022. The order reads as under:
It appears that the petitioner having been authorized to lay down transmission lines under the Telegraph Act sought for permission to execute the project and an application was so made. By the impugned communication dated 12.10.2022, the Deputy Collector and Sub-Divisional Magistrate has assessed the amount of compensation effected land owners need to be paid.
Mr. Mihir Thakore, learned Senior Advocate would submit that under Section 16 of the Indian Telegraph Act, 1885, the Deputy Collector would have no authority to assess compensation inasmuch as under sub-section 3 of Section 16 of the Act, it is only the District Court which has jurisdiction to determine the sufficiency of compensation. Reading sub-section 3 of Section 10 of the Act, he would submit
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