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2015 Supreme(J&K) 496
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohammad Yaqoob Mir, J.
Zahoor Ahmad Shah Watali and Ors. – Appellant
Vs.
State and Ors. – Respondents
OWP No. 266/2009
Decided On : 04-11-2015
Advocate Appeared:
For the Appellant :Feroz Ahmad Vice and M.A. Qayoom, Advocate
For the Respondents: Asif A. Bhat, A.A.G.
When a project is dedicated to public use, the requirement for consent under Section 11(2) of the Electricity Act is not applicable.
Headnote:
Electricity Act - Public Use - Section 11(2)
Fact of the Case:
The petitioners owned land where they planned to construct residential flats. They obtained permission from the Authority for the construction. However, the respondents started laying a transmission line over the petitioners' land without their consent, which would cross over the structures already raised by the petitioners. The petitioners sought a writ of Prohibition and Mandamus to stop the laying of the transmission line and to change its alignment.
Finding of the Court:
The court found that the project for laying the transmission line was dedicated to public use, and therefore, the consent of the petitioners was not required as per Section 11(2) of the Electricity Act. The court also noted that any damage caused to the petitioners' property by the transmission line would entitle them to appropriate compensation under the Act.
Issues: The main issue was whether the laying of the transmission line over the petitioners' land without their consent was lawful under Section 11(2) of the Electricity Act.
Ratio Decidendi: The court held that when a project is dedicated to public use, the requirement for consent under Section 11(2) of the Electricity Act is not applicable. The court also emphasized that any damage caused to the petitioners' property would entitle them to compensation under the Act.
Final Decision: The petition was dismissed as the court found that the laying of the transmission line over the petitioners' land for a project dedicated to public use did not require their consent, and the petitioners would be entitled to compensation for any damage caused to their property.
Mohammad Yaqoob Mir, J.
This petition was tagged with OWP Nos. 543/2010 and 43/2010 but stand segregated as per the order recorded thereon so is taken up for hearing separately.
1. The case was firstly argued by associate lawyer Mr. Feroz Ahmad and reserved for orders. Subsequently, the engaged counsel Mr. M.A. Qayoom appeared in the second half of the day and submitted that in addition to what has been argued by his associate Advocate, he wants to file written arguments which he has filed, same are available on the records. Heard learned counsel for the parties and perused the record.
2. From the reply as filed by the respondents what transpires is that a proposal for laying of 220 KV double circuit transmission line from Zainakote to Mir Bazar via Alsteng was approved in the year 2004-05 by Government of India under Prime Ministers reconstruction Plan. After completion of preliminary works, the work of laying tower foundation was taken up strictly as per route profile/tower schedule duly approved by the competent authority. In Zainakote-Alsteng section of said transmission line, out of 158 tower foundations, 140 have already been laid. The foundation at tower location No. 49C and 51A has already been laid while as subject tower i.e. location No. 50-A falls in the land of the petitioners.
3. The petitioners have filed the instant petition projecting therein that they are owners in possession of the land covered by survey Nos. 1057/818/754/114, 819, 113, 873, 860, 113/min, 115/min, 818/min, 702, 112, 116, 61 and 71 situated at Sozeith Goripora Tehsil Beerwah. The petitioners conceived a plan of constructing 18 number of residential flats (three storied each) over the said land. In connection therewith, have applied to the Building Operations Controlling Authority (Commissioner, Srinagar Municipal Corporation (hereinafter for short referred to as the Authority) for grant of necessary permission. The Executive Engineer Electric Inspection Division, Srinagar after conducting spot inspection vide his letter No. EIDS/906, dated 23.06.2008 had informed the Authority that no line is passing over or adjacent to the proposed construction, therefore, there is no objection to the petitioners in undertaking the construction within the specified setbacks. The Authority also asked Srinagar Development Authority for no objection. The Senior Town Planner, SDA, vide his letter No. SDA/STP/254, dated 21.08.2008 has also informed the Authority about its no objection.
4. The Authority after considering the reports has granted permission in favour of the petitioners for construction of 18 number of residential flats (three storied each). The petitioners claim to have raised construction of the said flats and have also raised the compound walling. While being in the process of completing the construction, the respondents allegedly without the permission of the petitioners have started laying of transmission line over the petitioners' land which will cross over the duly raised structures by the petitioners. Petitioners claim to have represented to the respondent-authorities not to lay the transmission line over the land of the petitioners which they refused. They were also requested to change the alignment of the transmission line which too was refused when in terms of Section 11(2) of the Electricity Act, 1997, without the consent of the owner/occupier, the respondent-authorities have no competence to lay the transmission line over the land/structure. Finally, petitioners have prayed for issue of writ of Prohibition so as to prohibit the respondents from laying down electric transmission supply line through petitioners land and structures raised thereon with a further writ of Mandamus so as to command the respondents to change the alignment of the transmission line from the one which is under contemplation.
5. Respondents in their reply have not denied the fact of no objection conveyed by the Executive Engineer Electric Inspection Division, Sri
