Gujarat High Court
Mohammed Razi Ishtiaq Ahmed Mirza vs The State Of Gujarat on 6 May, 2025
NEUTRAL CITATION
C/SCA/1922/2025 ORDER DATED: 06/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1922 of 2025
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MOHAMMED RAZI ISHTIAQ AHMED MIRZA & ORS.
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR ANSHIN H. DESAI SR. COUNSEL with MR MANAN A SHAH(5412) for
the Petitioner(s) No. 1,2,3
MS JYOTI BHATT AGP for the Respondent(s) No. 1,2
MOSON LE EXPARTS(11071) for the Respondent(s) No. 3,4
MR AKSHAT KHARE(5912) for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 06/05/2025
ORAL ORDER
1. By the present Special Civil Application, the petitioners are
praying for the following reliefs :-
“(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari
and/or any other appropriate writ, order or direction, quashing and
setting aside the impugned orders bearing no.WR-2/PESM/
Grievance-2024-2025/Reply-3985/637and Grievance-2024-25/Reply
3984/638 both date 25.1.2025 passed by respondent no.4
(Annexure-A Colly) as being illegal and bad in law;
(B) Pending the admission, hearing and final disposal of the
present petition, YOUR LORDSHIPS may be pleased to stay the
implementation, execution and operation of the impugned orders
bearing no.WR-2/PESM/Grievance-2024-25/Reply-3985/637 and
Grievance-2024-25/Reply 3984/638 both date 25.1.2025 passed by
respondent no.4 (Annexure-A Colly) and restrain the respondents
from installing overhead transmission lines and electricity poles and
such other related activities on the Subject Lands of the petitioners;
(C) YOUR LORDSHIPS may be pleased to grant such other and
further relief as may be deemed fit and proper in the interest of
justice;”
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2. The brief facts in the present case are that the petitioners are
the owners of the land bearing survey Nos.187, 189, 190 and 191
situated at Village Kathwada, Taluka Mangrol and the land bearing
survey Nos.237, 238, 240 and 267, situated at Village Kosamba,
Taluka Mangrol, District Surat, in all admesauring 35000 sq. mtrs.
approximately. The petitioners are carrying out agricultural and
farming activities on the said lands and are also maintaining milch
animals. That, a public notice dated 18.06.2023 came to be issued
in the daily newspaper “Divya Bhaskar”, Ahmedabad Edition,
reflecting the survey numbers of various lands including the lands of
the petitioners for laying down 765KV DC Ahmedabad-Navsari High
Tension Line. Pursuant to the said public notice, the petitioners
made an application to the respondent No.3 herein under the Right
to Information Act, seeking information in respect of the route of
transmission line. That on 04.12.2023, the respondent No.3 made
an application under Section 16 of the Telegraph Act, 1885 to the
respondent No.2 raising a grievance that while laying down the
transmission line, the farmers are raising objection and are causing
hindrance. That on 24.06.2024, a notice came to be issued to the
petitioners calling upon them to appear for hearing on 27.06.2024
and to produce certain documents and make an appropriate
representation. Another such notice dated 27.06.2024 came to be
issued intimating the next date of hearing on 04.07.2024. That the
petitioners appeared before the respondent No.2 Collector and
submitted the detailed written objection/representation. That by the
orders dated 06.09.2024 and 09.12.2024, the respondent No.2
permitted the respondent No.3 to lay down the transmission lines
from the subject lands owned by the petitioners, directing that
minimum damage be caused to the land holders and also directed
to pay the compensation to the petitioners. That on 5/6.12.2024, the
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office of the respondent No.3 visited the lands of the petitioners and
earmarked the location of the transmission tower. It is also the case
that the transmission lines are passing through the middle of the
petitioners’ lands, thereby rendering the entire lands of the
petitioners unusable. Aggrieved by the orders dated 06.09.2024 and
09.12.2024, the petitioners filed the Special Civil Application Nos.
17270 of 2024 and 17149 of 2024 in this Court since the petitioners
were seeking realignment of route so as to cause minimum damage.
This Court, vide order dated 20.12.2024, was pleased to dispose of
the said petitions with a direction to the petitioners to make an
appropriate representation for realignment of transmission line,
which was to be considered and evaluated by the Internal Technical
Committee of the respondent No.4 by passing appropriate order on
such representation. By the impugned communication dated
25.01.2025, the Technical Committee of the respondent No.4 has
rejected the representation of the petitioner dated 02.01.2025.
Aggrieved, the petitioners have preferred the present Writ Petition.
3. The learned senior counsel Mr. Anshin Desai appearing for the
petitioners submits that the action of the respondent authorities is
in disregard to due process and fundamental rights of the
petitioners by attempting to install the transmission tower on the
petitioners’ lands forcibly. The learned senior counsel submits that
no notice was given to the petitioners before attempting to install
the transmission tower. He submits that the realignment proposal
given by the petitioners was also decided without giving hearing to
the petitioners. He submits that the said action is arbitrary, illegal
and in violation of the principles of natural justice. The learned
senior counsel submits that the action of the respondent authority is
also in violation of Article 300A of the Constitution of India, which is
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a constitutional right. He submits that Article 300A mandates that
no person shall be deprived of the property except by the authority
of law. He submits that unilateral and coercive action of the
respondents amounts to unauthorized and unlawful deprivation of
the petitioners’ right to the property. He submits that the impugned
communication makes out a reference to so-called visit made by the
Internal Technical Committee at the site proposed by the petitioners
on 21.01.2025. He submits that no prior notice was given to the
petitioners by the Internal Technical Committee while visiting the
said site and the petitioners were never called for consultation for
consideration of their realignment proposal. He submits that in fact,
the Internal Technical Committee or its representative has not
visited the site at all. The learned senior counsel submits that the
rejection of the representation of the petitioners is without any
basis. The learned senior counsel submits that the petitioners had
engaged a cartographer and accordingly, had submitted the
realignment plan, which was technically feasible and the said
proposal submitted by the petitioner was after taking into
consideration all the factors. He submits that the transmission line
proposed by the respondent Nos.3 and 4 had also been designed by
the cartographer. He submits that the realignment proposal of the
petitioners was technically sound, which was required for such
realignment. The learned senior counsel submits that all these
factors have neither been taken into consideration, nor discussed in
the impugned communication. He submits that the impugned
communication causes great hardship to the land of the petitioners.
He submits that the impugned communication is non-speaking and
non-reasoned as it does not give the reason as to why the
realignment of transmission line as proposed by the petitioners is
not feasible. The learned senior counsel submits that since the
transmission lines are passing through the lands of the petitioners,
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the petitioners will not be able to do agricultural activities any
further. Further, the valuation of the land would also become Nil. He
submits that by the proposed route of transmission line, the entire
land of the petitioners is rendered unusable. The learned senior
counsel has placed reliance on the decision of the Hon’ble Apex
Court in the case of Kolkata Municipal Corporation and anr. vs.
Bimal Kumar Shah and ors. [(2024) 10 SCC 533]. He submits
that as per the said reported decision, the authority is required to
follow due procedure of law if it proposes to acquire any land for
acquisition. He submits that the present action of the respondent
authority is akin to acquisition and therefore, no procedure known to
law has been followed by the respondents before laying down the
transmission line. The learned senior counsel submits that the
action of laying down the transmission line amounts to acquisition of
land in as much as the land beneath the transmission line is
affected by electromagnetic field and is dangerous for human
existence. Further, no agricultural activities can be undertaken on
such land. The learned senior counsel submits that as there is
acquisition, the affected land owners should be compensated
appropriately. He submits that even though the towers are placed in
the middle of the land, the transmission lines are going through the
whole land of the petitioners. The learned senior counsel submits
that the land adjacent to the land of the petitioners is waste land
and the said land could have been utilized for erection of
transmission tower. He submits that the action of the respondent
authority is in contravention of its obligation to ensure minimum
damage to be caused while laying down the overhead transmission
lines. He submits that the compensation being offered to the
petitioners under the Telegraph Act is also inadequate compared to
the damage caused due to passing of the transmission line over the
land as the petitioners will permanently lose the utility of their lands
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due to installation of transmission tower. He, therefore, submits that
the respondent authorities have not taken into consideration all
these factors while rejecting the representation of the petitioners for
realignment of the route of transmission line. The learned senior
counsel finally submits that the present petition be allowed.
4. Per contra, the learned counsel Mr. Akshat Khare appearing
for the respondent Nos.3 and 4 submits that the Power Grid
Corporation of India is a Central Public Sector Enterprise and India’s
largest Electric Power Transmission Utility. He submits that the
Indian Power System has moved towards “One Nation One Grid”
wherein power generated from all sources is brought into one
network and is supplied to the end users in a most effective and
efficient manner ensuring overall economic development of the
country. He submits that under the said system, the transmission
line is being laid at Khavda being potential RE zone and connecting
it to rest parts of the country. The learned counsel submits that the
whole process of transmission line construction is for public purpose
and will be beneficial in the State of Gujarat in particular. The
learned senior counsel submits that the respondent No.3 has only a
user right to enter into the lands of the petitioners for laying of
overhead transmission line approximately 15 meters above the land
and for the said purpose, the petitioners and other affected persons
are getting sufficient compensation for the damage caused due to
construction of the said transmission lines and also for the
diminution value of the land. No possession of the land will be taken
by the respondent No.3 and the ownership and possession of the
land will always remain vested with the petitioners/land owners. The
learned counsel submits that prior notice for laying down the
transmission lines was given in the newspaper intimating the
prospective affected land owners across various villages. He
submits that the respondent Nos.3 and 4 have followed duePage 6 of 18
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procedure as prescribed under the Telegraph Act, 1885 as well as
Indian Electricity Act, 2003. He submits that even after construction
of transmission tower, the Right of Way area remains in possession
of the petitioners for utilization and the same should not hinder any
future maintenance work and must not obstruct the overhead
transmission line as per the CEA Guidelines. He submits that the
petitioners are very well aware of utilization of the land in question.
The learned counsel submits that while fixing the transmission line
route, the most techno economically feasible route is chosen
causing least damage. The said transmission line would not have
any impact on human beings, animals, plants etc. beyond the
statutory clearance/norms. He submits that the petitioners can
undertake all activities which are permitted on the said lands. The
learned senior counsel submits that the representation of the
petitioners was considered by the appropriate authority, i. e. the
technical team. After taking into account all the aspects, it was
decided that the proposal of the petitioners is not feasible inasmuch
as shifting of towers will change the alignment of the entire
proposed route and will ultimately result in demolishig and recasting
various tower foundations at various locations for which works have
already been completed. He submits that the transmission line is
crossing the subject land which is between tower location Nos.176/0
and 177/0 and the said route has been finalized due to crossing of
National Highway No.48. He submits that overall minimum distance
has to be maintained between various towers for stability of
transmission lines. He submits that the realignment route proposed
by the petitioners will have cascading effect on preceding and
succeeding crossing of rail, road and other existing transmission
lines. He submits that the proposed route is in direct breach of
statutory safety technical requirement on overall transmission
route. He submits that taking into consideration the overall interestPage 7 of 18
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of safety of subject transmission line and consequent to cascading
effect of proposal, the proposal of the petitioners is declined by the
Internal Technical Committee. He, therefore, submits that after due
consideration and taking into account all the technical factors, the
realignment proposal of transmission route has been rejected by the
impugned communication. He submits that no interference is called
for since the issue is highly technical in nature and cannot be
assessed without technical expertise. He finally submits that the
request for shifting the transmission line from the land owned by the
petitioners is mere suggestion without having any technical merit
and is made only to achieve personal commercial gain.
5. Heard the learned counsels for the parties, considered the
submissions and perused the documents on record.
6. In the present case, the transmission tower is being erected
on the lands of the petitioners and the transmission line forms part
of Ahmedabad – South Gujarat/Navsari (new) 765 KV DC
Transmission Line. Section 10 of the Indian Telegraph Act, 1885
authorizes the telegraph authority to place and maintain the
telegraph lines under, over, along or across and posts in or upon
any immovable property. Section 164 of the Indian Electricity Act
enables the provisions of the Indian Telegraph Act to be applicable
to the Electricity Authority for laying of the overhead transmission
line. The Central Electricity Authority, in exercise of powers under
Section 164 of the Electricity Act, has conferred the powers of the
Telegraph Authority to the respondent No.3 for the purpose of the
said project. A copy of the said approval under Section 164 of the
Electricity Act and the Gazette Notification has been placed on
record. Therefore, the respondent No.3 has a “Right of Way” (ROW)
to enter into the petitioners’ land for laying of transmission line. No
acquisition of land is involved in the process and during the
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construction activities, if any damage is caused to the
trees/crops/structure, then the transmission licensee is liable to pay
actual compensation as per the assessment done by the Revenue
Department. Pursuant thereto, the respondent No.3 had also issued
a notice to the petitioners intimating them before entering into their
land for the work of transmission tower. As the petitioners herein
objected to the work undertaken by the respondent No.3, an
application was filed under Section 16(1) of the Telegraph Act
before the learned District Magistrate, Surat. The petitioners herein
were issued notice and they raised their objections to the
application of the respondent No.3. By the order dated 06.09.2024,
the learned District Magistrate has rejected the objections of the
petitioners and permitted the respondent No.3 for laying the
transmission lines.
7. This Court had granted opportunity to the petitioners to make
an appropriate representation for realignment of the route of
transmission line to the competent authority of the respondent
No.3. The competent authority has given a negative opinion since it
would involve major change in the alignment as proposed by the
petitioners and it will change major alignment of the entire line
resulting in demolition and recasting of various towers’ foundation
at various locations, which are already completed. Further, the
respondent No.3 has to comply with the Rule 87(3) & (6) of the
Indian Electricity Rules, 1956 which mandate the minimum height
clearance between crossing lines and also mandate minimum not
less than 60 degree angle crossing between two power lines. The
realignment, as proposed by the petitioners, will result in violation
of permissible angle of deviation at the preceding and succeeding
towers. Further, the transmission line, which is passing through the
land of the petitioners requires a clear corridor of 67 meters on
either side from the center of the transmission line and the land
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below the same can be utilized. The said transmission line is
purported not to have any impact on human beings, animals, plants
etc. beyond the statutory clearance/norms. Therefore, in the given
circumstances, the action of the respondent No.3 in not accepting
the proposal of the petitioners to shift the transmission line is a
considered decision in view of the facts noted and the reasons given
by the respondent No.3 to the representation of the petitioners by
communication dated 25.01.2025.
8. The learned senior counsel appearing for the petitioners has
submitted that the impugned communication has been issued
without any actual survey on the site in question and that the
respondent Nos.3 and 4 have neither given any hearing to the
petitioners, nor visited the land proposed for realignment of route.
By way of additional affidavit dated 05.05.2025, the respondent
Nos. 3 and 4 have placed on record the details in respect of the
action taken by the Internal Technical Committee of the respondent
Nos.3 and 4 while considering the proposal of the petitioners for
realignment of the transmission route. The said affidavit details out
how the proposal of the petitioners has been dealt with including
visit to the new tower site as proposed by the petitioners in their
proposal. This Court is fully satisfied that the Internal Technical
Committee of the respondent Nos.3 and 4 has duly applied its mind
to the realignment of the route proposal given by the petitioners.
The impugned communication has been issued rejecting the
proposal after due consideration of all the aspects. The contention
raised by the learned senior counsel for the petitioners in respect of
non-consideration of proposal, non-visit of technical committee
members as well as mechanical rejection of the proposal of the
petitioners is liable to be rejected in view of the additional affidavit
dated 05.05.2025.
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Brahmbhatt (Barot) [2020(4) GLR 2642], has held as follows:-
“58. The final conclusions are as under:-
58.1 The Part III of the Telegraph Act, 1885, deals with the Power
to place “Telegraph Lines and Posts” and there are other provisions
in the said Act, applicable to all the properties. As seen from the
plethora of cases, the powers conferred on the telegraph authority
to place and maintain telegraph lines and towers, are traceable to
Sections 10, 11 and 14 of the Act, 1885 and by virtue of Section
164 of the Electricity Act, 2003, it is conferred on any public officer,
licensee or any other person engaged in the business of supplying
electricity.
58.2 As per Clause (c) to Section 10, the authority can exercise its
powers in respect of the property of a local authority only, by
obtaining permission of that authority, whereas, no such
permission is required in relation to the property of others. Section
10 does not contemplate notice to an owner or occupier of land to
show cause against laying of a line and it authorizes the telegraph
authority, to place a telegraph line under, over, along or across any
immovable property. The proviso makes it clear that the licencee
or any other authorised person does not acquire any right, other
than that of user of the property. The right conferred on the land
owner is only to seek for payment of compensation for any damage
sustained by him, by reason of exercise of the powers.
58.3 Section 10 of the Indian Telegraph Act, 1885, confers a legal
sanction to a telegraph authority to enter into any private property,
subject to the condition that, while entering into the property and
during the course of execution of any work, the telegraph authority
is under an obligation to cause as little damage, as possible, and
shall pay full compensation to all the persons interested for any
damage sustained by them, while exercising the powers conferred
under Section 10 of the Act.
58.4 When power of the telegraph authority to enter into any
private property, is subject to the conditions to cause as little
damage as possible, and when there is a provision for payment of
compensation, the question as to whether, the said authority
should seek for consent from the owner of the property, or provide
him an opportunity of hearing before entering into the property,
does not arise. However, the land owner may be informed of the
work to be executed.
58.5 Since the powers under Section 10 of the Indian Telegraph
Act, 1885, can be exercised without acquiring the land in question,Page 11 of 18
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once an order is passed by the appropriate government under
Section 164 of the Electricity Act, 2003, the public officer, licensee
or any other person engaged in the business of supplying
electricity shall be entitled to proceed with the works of placing the
electric lines without acquiring the land in question. Usage of the
land by the licencee or the authorised person, does not amount to
acquisition.
58.6 Section 164 of the Electricity Act, 2003, empowers the State
Government to confer, by an order in writing, powers which the
telegraph authority possesses under the Indian Telegraph Act,
1885, with respect to placing of the telegraph lines and posts, on
any public officer, licensee or any other person engaged in the
business of supplying electricity under that Act, for placing of
electrical plants and electric lines, in terms of Section 2(20), which
defines “electric line”, as any line which is used for carrying
electricity for any purpose and includes–
“(a) any support for any such line, that is to say, any structure,
tower, pole or other thing in, on, by or from which any such line is,
or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of
carrying electricity;”
58.7 The power conferred on any public officer, licensee or any
other person engaged in the business of supplying electricity under
the Electricity Act, for the abovesaid purpose, may be subject to
such conditions, if any, the Government may deem fit to impose
and also subject to the provisions of the Indian Telegraph Act,
1885.
58.8 The authorisation, in terms of Section 164 of the Electricity
Act, 2003, read with Section 10 of the Indian Telegraph Act, 1885,
authorising the public officer or licencee or any other person
engaged in supplying electricity, all the powers of the Telegraph
Authority, which includes the power to enter into any private
property, subject to the condition that while entering into the
property and the public officer or licensee or any other person,
authorised under the Act, is under an obligation to cause as little
damage as possible, with a guarantee for payment of
compensation for the owner of the land or the persons interested.
58.9 Sections 16 and 17 respectively of the Indian Telegraph Act,
1885, do not limit the absolute powers of the telegraph authority to
enter into any property for the purpose of enforcement of Section
10 of the Indian Telegraph Act, 1885, read with Section 164 of the
Electricity Act, 2003, by which, the public officer or licensee or any
other person engaged in the business of supplying electricity under
this Act, is empowered to exercise all the powers, for the purpose
of placing electrical plant, line, erection of towers, conductors,
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poles, etc.
58.10 The intention of the Legislature, is to provide electricity, in
terms of Section 43 of the Electricity Act, 2003. When the purpose
of the Act, is to provide the basic amenity of electricity to the
public at large, and if every objection/resistance has to be
entertained under Section 16(1) of the Indian Telegraph Act, 1885,
then it would render Section 10 of the Indian Telegraph Act, 1885
and Section 164 of the Electricity Act, 2003, meaningless, thereby,
the power conferred on the telegraph authority to enter into any
property, subject to causing, as little damage as possible, with an
assurance of payment of compensation to the damage, if any,
would be redundant.
58.11 If Section 16(1) of the Act, has to be construed, conferring a
right on the landowner to seek for an opportunity of prior notice or
consent, then the very purpose of Section 10 of the Indian
Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003,
would be defeated.
58.12 Vis-a-vis Section 185 (2) (b) of the Electricity Act, 2003 and
Section 12 (2) of the repealed Indian Electricity Act, 1910, under
which the consent of the owner or occupier is essential and on the
issue, as to the enforceability of Section 12 of the Act, until the
Rules are made under Section 67 of the Electricity Act, 2003,
consent of the owner or occupier is necessary, only in the absence
of any order, passed under Section 164 of the Electricity Act, 2003.
58.13 Having taken into consideration the relevant provisions of
the Indian Telegraph Act, 1885 and Electricity Act, 2003 and
analysis of Section 67 and section 164 of the Electricity Act, 2003,
the legal position is that, whenever an order is passed by the
appropriate Government, in exercise of powers under Section 164
of the Electricity Act, 2003, for placing of electric lines for the
transmission of electricity, conferring upon any public officer,
licensee or any other person engaged in the business of supplying
electricity any of the powers which the telegraph authority
possesses under the Indian Telegraph Act, 1885, with respect to
the placing of telegraphic lines and posts for the purposes of a
telegraph established by the Government, such public officer,
licensee or any other person engaged in the business of supplying
electricity, exercises all the powers, as that of the telegraph
authority, under the Indian Telegraph act, 1885.
58.14 However, in the absence of such an order under Section 164
of the Electricity act, 2003, if a licensee i.e., a person who has been
granted a licence to transmit electricity or to distribute electricity
under the Act, proposes to place electric lines, electric plant or
other works necessary for transmission or supply of electricity,
Section 67 of the Electricity Act, 2003 comes into operation and
consequently, prior consent of the concerned owner or occupier,
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may be required, under Section 12 (2) of the Indian Electricity Act,
1910.
58.15 The provisions of the Works of Licensees Rules, 2006 made
under Section 67 (2) of the Electricity Act, 2003 are in pari materia
to Section 12 of the repealed Indian Electricity Act, 1910. The
Works of Licensees Rules, 2006 are applicable, only in a case,
where the works have been taken up by the licensee, under
Section 67 (1) of the Electricity Act, 2003. But Section 67 (1) of the
Electricity Act, 2003, as well as the rules made under Section 67
(2) would govern the field, only in the absence of an order, under
Section 164 of the Electricity Act, 2003.
58.16 Section 16 states that if there is any resistance or
obstruction, the District Magistrate may in his discretion, order that
the telegraph authority shall be permitted to exercise all the
powers. Further, after such an order, a person offering any further
resistance is deemed to have committed offence under Section
188 of the Indian Penal Code. Once the technical feasibility of the
project, has been approved by the appropriate Government, by
issuing an order under Section 164 of the Electricity Act, 2003, no
land owner or person interested can seek for shifting or re-aligning
of the route, on the premise that the District Collector-cum-District
Magistrate, has the powers to do so. The District Collector has no
powers to alter any route or alignment, except to remove the
difficulties faced by the licencee or the person authorised, pursuant
to the orders issued under Section 164 of the Act.
58.17 If the intention of the Legislature was to seek for consent or
permission from every owner and if the right of such owner has to
be recognised, in terms of Section 16(1) of the Telegraph Act, due
to resistance/obstruction, then the execution of any work or
project, would be stopped at every stage. Needless to state that
the execution of works, involving erection of towers and connection
of overhead lines, is done, only after a detailed field study, by
identifying a feasible route of the proposed transmission line, and
while selecting suitable corridors, residential areas to be avoided,
span length, the angle of deviation, extent of damage, likely to be
caused, while erecting towers, maintenance cost of electric lines
and towers and other factors, have to be considered. Public
interest, in providing electricity to a large section of people and
industrial establishments, etc., has to be given weightage over
private interest.
58.18 If the authorities have to recognize the right of obstruction
or resistance, in terms of Section 16(1) of the Indian Telegraph Act,
1885, then the moment, any notification is published, all the
landowners or interested persons, who have the knowledge of the
commencement of any development work, would immediately
resist or obstruct the work, and may even seek for re-location or if
the towers, posts had already been erected, may seek for re-
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alignment or removal of towers and plants, erected by the public
officer or licensee or any other person, engaged in the business of
supplying electricity, authorised to carry out the works, in terms of
an order passed by the appropriate Government, under Section
164 of the Electricity Act, 2003.
58.19 When a project involves huge expenditure, erection of many
towers at various places and when such project involves, greater
public interest, then even a single owner, under the pretext of
making objections/resistance, would attempt to stall the process of
execution of the project. When entry into any property is legally
authorised, with payment of compensation to the land owner, no
prior consent is required.
58.20 The Apex Court and other Courts in India, have categorically
held that the action of the licencee or the competent authority, in
erecting poles or posts, in the property or drawing lines over the
property, does not amount to acquisition of lands and it amounts to
only user of the property to the extent indicated and therefore,
there is no requirement to intiate any land acquisition proceedings,
giving opportunity to the land owners, when execution of the work,
is ordered under Section 164 of the Act and accordingly, carried
out by the licencee or any other competent authority.
58.21 Even if any Court issues any directions to consider the
representation of any land owner or person interested, such
directions are required to be considered only to the limited extent
of payment of compensation, to be given by the licencee or the
competent authority and the directions issued, if any, would not
empower the District Collector-cum-District Magistrate, to pass any
order, contrary to the orders, passed under Section 164 of the Act.
58.22. When the appropriate Government passes an order under
Section 164 of the Act, the Collector is bound by the said order,
and he is not superior to the Government, to hold that the
Government has erred in passing an order, under Section 164 of
the Act, authorising the licencee or the competent authority to
carry out the work, in the route, which involves Techno Economic
Consideration.
58.23 The Act confers powers to the Telegraph Authority to
determine the property over which the lines are to pass or posts to
be erected. The powers of the District Magistrate under Section
16(1) of the Indian Telegraph Act, 1885, does not extent to any
adjudication, as to from where and how, the line has to be drawn
over any specific item of the property or where posts have to be
erected or not, in any specific item of the property.
58.24 The Power of the District Magistrate is confined only to the
extent of exercising his discretion in granting permission to the
Telegraph Act, to execute the work, when an application is made
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by the licencee or the competent authority.
58.25 Section 10 of the Indian Telegraph Act gives legal sanction to
the licencing authority to enter into any property, to lay poles or
posts or draw electric lines. But while doing so, the damage of the
property should be less. If there is any resistance, the licencee or
the authorised person may approach the District Magistrate-cum-
District Collector, to grant permission.
58.26 Once the power is conferred on the licencee or any other
competent authority, there can be no objection to the
implementation of the scheme, on the principles of natural justice
or on the ground of unauthorised use of the land.
58.27 The legislature has conferred powers on the appropriate
Government to authorize a public officer or a licencee, etc., under
the Electricity Act to exercise the specific powers of an authority
under the Indian Telegraph Act, 1885. The authorisation may be
general in favour of a transmission company or in a given case,
special. The route is decided by the transmission company. The
decision to mark a route for laying an electric line is a highly
specialized and technical. At that time, it is unrelated to any
specific land owner. The route may be for over hundreds of
kilometers passing over Government lands, lands of local
authorities and private lands and it may not be practicable to hear
the land owners along the entire route.
58.28 Having regard to the specialized and technical nature of the
task, and the fact that the lines are laid for distribution of
electricity, it is the view of this Court that, the Legislature has not
provided for any notice or hearing to the public at large, or to the
land owners. Therefore, when the appropriate Government
authorises a person or any body under the Electricity Act, to
exercise the powers of the Telegraph Authority, all the powers
under the Indian Telegraph Act, 1885, are meant to be exercised.
58.29 The Electricity Act, 2003, is a progressive enactment, with a
specific purpose of providing electricity to a large number of
people, across the country, to promote industrial and sustainable
development in all walks of life. Right of a land owner to possess
and enjoy the property, though recognised as a Constitutional
Right, under Article 300-A of the Constitution of India, such right
has to yield to the Articles 14 and 21 respectively of the
Constitution of India, which strive to achieve the Constitutional
Goals, enshrined in the basic structure of the Constitution of India.
[see T. Bhuvaneswari vs. The District Collector cum District
Magistrate, Erode District, Erode, W.P. No.18548 of 2013, decided
on 19.11.2013]
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The said decision came to be challenged before the Hon’ble
Apex Court by way of Special Leave Petition No.51 of 2021 which
came to be dismissed vide order dated 01.02.2021.
10. In view of the settled legal position and the averments on
record, this Court finds that in the present case, proper procedure
has been followed by the respondent Nos.3 and 4 in respect of
planing, erection of transmission tower and laying down of
transmission lines and there is no violation of any provision. The
proposal submitted by the petitioners has also been evaluated on
merits.
11. The learned senior counsel has also submitted that the action
of the respondent authority to construct the transmission tower
amounts to acquisition of land and therefore, due procedure has to
be followed in respect of such acquisition. The said contention is
liable to be rejected. It is settled legal position that the action of the
respondent Nos.3 and 4 of erecting the transmission tower and
laying down the transmission lines does not amount to acquisition of
land. It only amounts to the user of the property to the extent
indicated and therefore, there is no requirement to initiate any land
acquisition proceedings giving opportunity to the land owners, while
execution of the work is ordered under Section 164 of the Electricity
Act, 2003 and accordingly, carried out by the licensee or any
competent authority.
12. Having regard to the specialized technical nature of the task
in question and the fact that the transmission lines are laid for
distribution of the electricity, this Court is of the opinion that no
interference is called for in the present Writ Petition.
13. In view of the aforesaid observations, reasons and settled law,
no case is made out by the petitioners for grant of relief as prayed
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for. The Special Civil Application is devoid of merits and is
accordingly dismissed. No order as to costs.
14. The learned senior counsel Mr. Anshin Desai submits that the
order may not be implemented for a period of two weeks and status
quo be maintained so as to enable the petitioners to challenge the
same in appeal. The learned counsel Mr. Akshat Khare appearing for
the respondent Nos.3 and 4 opposes the said prayer and submits
that the project has to be completed in time-bound manner.
Considering the submissions, the said prayer is rejected.
(ANIRUDDHA P. MAYEE, J.)
cmk
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