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2022 Supreme(Gau) 182
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
NORTH EASTERN TRANSMISSION COMPANY LTD. - Appellant
Vs.
THE STATE OF ASSAM AND ORS. - Respondent
WP(C) No. 667 of 2019
Decided On : 24-03-2022
For The Appellant : MS M HAZARIKA
For The Respondent: GA, ASSAM
Point of Law : Rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."
Headnote:
Indian Telegraph Act, 1885 – Section 10,11,12 and 16 - Diminution of land value- Damage of trees - Compensation - Present writ petition has been filed challenging judgment passed in Misc. (P.G.) by the District Judge, whereby it was held that petitioner was paid adequate compensation for damage of trees mentioned and there was no need for enhancement - As regards diminution of land value, Court below awarded an amount as compensation for diminution of land value and directed that petitioner to pay enhanced compensation to Respondent within a period of 3 months, failing which interest @ 8% per annum would be accrued on same from date of said judgment till full payment - This Court vide an order had issued notice and had stayed impugned judgment and order passed in Misc. (P.G.) Case by District Judge - Whether high voltage line passes over a small tract of land or through middle of land and other similar relevant factor in court opinion would be determinative.
Finding of the Court :
Coordinate Bench of this Court with due respect though had taken into consideration guidelines for payment of compensation towards damage in regard to right of way (RoW) to transmission line in portion of order as quoted hereinabove but failed to take into consideration Clause 2(ii) of said guidelines which stipulates that compensation towards diminution of land value in regard to right of way (Row) corridor due to laying of transmission line and imposing certain restrictions would be decided by States as per categorization/type of land in different places of States subject to maximum 15% of land value as determined based on circular rate /Guideline value/ Stamp Act rates - Now coming into facts of instant case, impugned judgment that Court below did not take into consideration relevant parameters as laid down by Supreme Court in case of Kerala State Electricity Board (supra) as well as Circular issued by Central Government and had without any basis fixed as compensation for diminution of the land value- Conscience of Court cannot be a guiding factor for fixing compensation - It has to be on basis of relevant factors, and more so when said factors had been duly stipulated in judgment of Supreme Court in case of Kerala State Electricity Board (supra) - Accordingly, this Court sets aside the judgment and order passed by District Judge, in Misc. (PG) Case in so far as fixation of diminution of land value is concerned and remand matter back to learned Court below to decide afresh in terms judgment rendered in Kerala Electricity Board (supra) as well as Government Circular issued by Central Government.
Result: Petition stands disposed of.
JUDGEMENT :
Heard Mrs. M. Hazarika, the learned Senior Counsel assisted by D. Khan for the petitioner. Mr. K. Goswami, the learned Additional Senior Government Advocate, Assam, appears on behalf of the Respondent No. 1 & 3. None had appeared on behalf of the Respondent No. 2.
2. It further appears from the order passed by the Lawazima Court dated 15/02/2022 that the service upon the Respondent No. 2 is complete.
3. The present writ petition has been filed challenging the judgment dated 12/10/2018 passed in Misc. (P.G.) Case No. 34/2015 by the District Judge, Hailakandi, whereby it was held that the petitioner was paid adequate compensation for the damage of trees mentioned and there was no need for enhancement. However, as regards the diminution of land value, the Court below awarded an amount of Rs.15,000/-as compensation for diminution of the land value and directed that the petitioner to pay the enhanced compensation of Rs.15,000/-to the Respondent No. 2 within a period of 3 months, failing which interest @ 8% per annum would be accrued on the same from the date of the said judgment till full payment.
4. This Court vide an order dated 04/02/2019 had issued notice and had stayed the impugned judgment and order dated 12/10/2018 passed in Misc. (P.G.) Case No. 34/2015 by the District Judge, Hailakandi.
5. Ms. M. Hazarika, learned Senior Counsel for the petitioner submits that the issue stands settled by a judgment of the Coordinate Bench of this Court dated 10.02.2020 passed In W.P.(C) No. 668/2019 (North Eastern Transmission Company Limited Vs. The State of Assam & Ors.) and she draws the attention of this Court to the findings arrived therein that diminution of the land value is not a relevant factor to be taken into consideration as compensation. On the basis thereof, the learned Senior Counsel submitted that in a similarly situated case, this Court vide the said judgment and order dated 10/02/2020 had set aside similar order where compensation on the basis of diminution of land value was awarded. The relevant portion of the judgment and order dated 10/02/2020 passed by the Coordinate Bench of this Court to which the learned Senior Counsel refers to is quoted herein below :-
“I have given due consideration to the submissions of the learned counsel. As per the Central Government direction issued by the Ministry of Power in the year 2015 any persons affected by such erection of tower and drawal of transmission line are entitled for the surface damage in respect of the land for the Right of Way (RoW) permitted under the Indian Telegraph Act, 1885 to the licensee and also in respect of the land covered by the tower base. While assessing the surface damage, the value of the land is not considered rather the produce thereof are normally considered. Accordingly, as the licensee is entitled for the right of way (RoW), the owner of any land over which the said transmission line passed, permitting the Right of Way (RoW) to licensee is entitlement for the surface damages caused at the time of erection of the transmission line and for the routine maintenance of the transmission line, But, the learned Court below considered the diminution of land value which is not a relevant factor.
In my considered opinion keeping in view the ambit of scope of Telegraph Act, 1885, and the provisions therein interference of the said impugned order dated 26/09/2018 of the Court below is required which accordingly, I do thereby setting aside the same.”
6. A perusal of the above quoted portion of the judgment of this Court would show that this Court had taken into consideration the Central Government’s circular issued by the Ministry of Power in the year 2015 whereby any person affected by such erection of tower and drawal of transmission line was held to be entitled for surface damage in respect of the land for the Right of way (RoW) permitted under the Indian Telegraph Act, 1885 to the licensee and also in respect to the land covered by the tower base. It was
