Gujarat High Court
Jitubhai @ Jitendrakumar Dahyabhai … vs State Of Gujarat on 10 March, 2025
NEUTRAL CITATION
C/SCA/15365/2024 ORDER DATED: 10/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15365 of 2024
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JITUBHAI @ JITENDRAKUMAR DAHYABHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR R R MARSHALL, SR COUNSEL with MR DAIFRAZ HAVEWALLA(3982)
for the Petitioner(s) No. 1,2,3,4,5,6
MR G. H. VIRK, LD. GOVERNMENT PLEADER with MS DHARITRI
PANCHOLI AGP for the Respondent(s) No. 1
MR KAMAL TRIVEDI SR COUNSEL with MR AKSHAT KHARE for MOSON
LE EXPARTS(11071) for the Respondent(s) No. 3
NOTICE NOT RECD BACK for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 10/03/2025
ORAL ORDER
1. The present Special Civil Application has been preferred
praying for the following reliefs:-
“A) That this Hon’ble Court be pleased to issue appropriate
writ, order or direction, quashing the impugned order dated
30.08.2024 passed in Application No. MAG/TELIGRAPH
ACT/765 KV KHAVDA TRANSMISSION LINE/VASHI 2323/2024
(Annexure A);
B) That this Hon’ble Court be pleased to issue appropriate
writ, order or direction, restraining the respondents from
laying the Line being 765KD DC Ahmedabad – Navsari line
from the lands of the petitioners and further be pleased to
direct them to take the line from the alternative route as
proposed by the petitioners (Annexure J);
C) That pending admission, hearing and final disposal of
this petition, this Hon’ble Court be pleased to stay the
implementation, operation and execution of the order datedPage 1 of 21
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30.08.2024 passed in Application No. MAG/TELIGRAPH
ACT/765 KV KHAVDA TRANSMISSION LINE/VASHI.2323/2024
(Annexure A);
D) Pending admission, hearing and final disposal of this
petition, this Hon’ble Court be pleased to direct the
respondents to restrain from laying the Line being 765KD DC
Ahmedabad – Navsari line from the lands of the petitioners;
E) That ad-interim injunction in terms of para (D) may be
granted;
F) That any other and further relief that is deemed fit and
expedient in the interest of justice be granted;”
2. The brief facts leading to the filing of the present petition are
that the petitioners are the joint owners and occupiers of the lands
bearing block/survey Nos.81, 93, 95, 100, 101, 102, 103, 104, 105,
Village Segva, Taluka Kamrej, District Surat, admeasuring 3,18,025
sq. mtrs. That the petitioners were desirous of developing the lands
and therefore, an application was given to the Town Planner, Surat
for permission to develop the said lands. That thereafter, the
development permission was granted to develop 643 industrial units
on the lands of the petitioners. As per the sanctioned plans, the
constructions on the lands in question were going on and the
petitioners had also sold the plots to various persons. That on
16.03.2024, the petitioners received a notice from the respondent
No.3 M/s. Powergrid Khavda II-C Transmission Ltd., Navsari stating
that they propose to undertake the construction of transmission line
package TLO2 765 KV DC Ahmedabad – Navsari Transmission Line
Project and for the said project, the said respondent has to lay
overhead transmission line from the lands of the petitioners and
other land holders. That thereafter, the petitioners made a
representation on 11.03.2024 before the Collector, Surat, raising an
objection with respect to Tower No.217/0, which was passing
through the lands of the petitioners. The petitioners raised an
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objection that the lands in question were already granted N.A.
permission and therefore, the lands were not agricultural lands. That
various plots were amalgamated and a huge industrial estate in the
name of Gopin Industrial Park was being established by the
petitioners and therefore, laying of the high power transmission
lines would affect the huge number of people. The Collector was,
therefore, requested to consider the case of the petitioners and
alter the route of the transmission line. That thereafter, on
13.03.2024, the petitioners again made a representation to the
respondent No.3 indicating various factors and requesting for
altering the route of transmission line. That in the meantime, the
respondent No.2 initiated the proceedings under the Telegraph Act,
1885 and the notice dated 30.05.2024 came to be issued to the
petitioner No.1 calling upon him to remain present for hearing on
06.06.2024. That thereafter, vide letter dated 30.08.2024, the
respondent No.2 Collector directed the State machinery to help the
respondent No.3 in laying of transmission line ignoring the objection
raised by the petitioners. Aggrieved, the petitioners have filed the
present Special Civil Application.
3. Vide order dated 28.10.2024, this Court, while issuing notice,
had directed the petitioners to make a fresh representation for
change of route to the appropriate authority for its consideration
and decision. Accordingly, the petitioners made a representation to
the appropriate authority of the respondent No.3, which came to be
rejected for the reasons stated in the communication dated
07.12.2024.
4. The learned senior counsel Mr. R. R. Marshall appearing for
the petitioners submits that it is well settled position that the
transmission lines usually pass through the agricultural land or
waste land, where minimum lands are utilized for erecting the tower
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and the agricultural activities are not prejudiced. It is only in
inevitable circumstances that the transmission towers are erected
on private or residential lands. He submits that the transmission line
passing through the lands of the petitioners and the towers being
erected over the same, has an alternative route available as the
same can pass through the lands, which are adjoining to the
National Express Highway and which have been acquired for the
purpose of construction of the National Express Highway. The
learned senior counsel further submits that the provisions of the
Telegraph Act, 1885 and the Electricity Act, 2013 cast an obligation
upon the authorities to ensure that while laying down the overhead
transmission line, minimum or little damage is caused to the land in
question. He submits that in the present case, without considering
any factor, the respondent authority has arbitrarily exercised its
powers by opting for present route of transmission line which is
adversely affecting the lands belonging to the petitioners as well as
adjoining lands, leaving aside the route adjoining to the National
Express Highway, whereby minimum damage is caused to the lands.
The learned senior counsel submits that the respondent authorities
have also breached their obligation by opting for more physical
route leading to erection of more transmission towers and adversely
affecting more number of private and residential land holders. He
submits that despite the representation being made, the respondent
No.3 has not given any reply as to why the present route is selected
for laying down transmission line when an alternative, feasible and
practical route is available. The learned senior counsel submits that
the respondent No.3 is proceeding ahead with the working of the
transmission line despite an objection being raised by the
petitioners and even when the issue in dispute was pending for
adjudication by the concerned authority. It is further submitted that
the petitioners have obtained N.A. permission from the Collector,
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Surat and the present route of land decided to lay down the
transmission line, which is passing through the lands of the
petitioners, renders the land unsuitable for utilization for industrial
purpose as it would pose danger to the lives of workers working for
the same. The learned senior counsel submits that the petitioners
had asked for the report in respect of tower locations and GPS
coordinates carried out in presence of the petitioners, however the
same was never made available to the petitioners and no
opportunity was provided to rebut the said report. The respondent
No.3 authority had never intimated to the petitioners regarding the
details of the specific survey numbers, area and locations from
which, the electrical towers would operate. He submits that even no
details regarding route map, b-line, feasibility study report asked for
by the petitioners have been provided. The learned senior counsel
submits that the petitioners are agitating the present issue since the
authorities have arbitrarily chosen the route of transmission line
from the lands of the petitioners, which is not in accordance with the
law and even when the alternative route was available for the same.
The learned senior counsel submits that even otherwise, the
impugned order passed by the the Collector is also silent on the
issue as to how much and to whom the compensation would be paid
for erection of transmission tower. The learned senior counsel
submits that since the Industrial Park Project of the petitioners will
be adversely affected, the alternative route causing minimum
damage to the land of the land holders should be decided and
adopted by the respondent No.3. He, therefore, submits that the
present Special Civil Application be allowed. In support of his
contentions, the learned senior counsel Mr. R. R. Marshall has
placed reliance on the judgment of the Hon’ble Apex Court in the
case of Kolkata Municipal Corporation and anr. vs. Bimal
Kumar Shah and ors. in Civil Appeal No.6466 of 2024 dated
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16.05.2024, wherein it has been held that under the constitutional
scheme, compliance with a fair procedure of law before depriving
any person of his immovable property is well entrenched and
compulsory acquisition will still be unconstitutional if proper
procedure is not established or followed before depriving a person
of their right to property. By the said judgment, the Hon’ble Apex
Court has laid down the principles with respect to acquisition of land
under the land acquisition proceedings.
5. Per contra, the leaned senior counsel Mr. Kamal Trivedi
appearing on behalf of the respondent No.3 Powergrid Corporation
submits that the said respondent is engaged in the business of
electric power transmission throughout the country by laying an
Inter-State Transmission System to ensure smooth flow of electricity
from generating stations to various load centers and to provide
efficient power supply for the entire country. He submits that the
Indian Power System has moved towards “One Nation One Grid”,
whereby the power generated from all sources is brought into one
network and is supplied to the end users in a most effective and
efficient manner, thereby solving the problem of power shortage in
various parts of India, which has obstructed overall economic
development of the country. The learned senior counsel submits
that the Powergrid, for one of its transmission line expansion
projects, incorporated M/s Power Grid Khavda II-C Transmission Ltd.
as a wholly owned subsidiary of Powergrid as a special purpose
vehicle for laying Transmission line at Khavda being potential zone
and connecting it to rest parts of the country. The learned senior
counsel submits that the respondent No.3 has followed the
appropriate procedure under the Telegraph Act, 1885 and the
Electricity Act, 2013. The learned senior counsel submits that
Section 164 of the Electricity Act confers powers of the Telegraph
Authority to the respondent No.3 for the said project. Upon
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conferring of this power of the Telegraph Authority, the respondent
No.3, which is transmission licensee, gets “Right of Way” (ROW) to
enter into the land/property for laying of transmission lines. The
transmission licensee does not acquire any right other than that of
“User Only” in the property and upon which it can place any electric
transmission lines/posts/towers. He submits that no acquisition of
land is involved in the process and during the process of
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. The learned senior counsel submits that said
compensation towards ROW/laying of transmission lines is only for
diminishing value of land and the said legal position has already
been upheld by the Hon’ble Supreme Court in the case of Kerala
State Electricity Board vs. Livisha and ors. [(2007) 6 SCC
792]. The learned senior counsel submits that in terms of the
circular dated 15.10.2015, duly revised by the circular dated
14.06.2024, the Central Government has issued directions to the
State Governments and the Union Territories to take suitable
decision in regard to adoption of the guidelines issued by the
Central Government. Accordingly, the State of Gujarat has issued
the Government Resolution dated 14.08.2017 as amended by the
Government Resolutions dated 31.12.2021, 01.03.2024 and
14.10.2024 as regards the compensation towards diminution value
of land. The learned senior counsel submits that the affected
persons are entitled for compensation in the stages as prescribed in
State Government Resolution dated 14.10.2024.
6. It is submitted by the leaned senior counsel Mr. Kamal Trivedi
that the Central Electricity Authority has already issued approval
letter dated 11.01.2023 under section 68 of the Electricity Act to the
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respondent No.3 for laying Ahmedabad – South Gujarat/Navsari
(new) 765 KV DC Transmission Line, which is of national important.
The said project is to be completed in 24 months by 21/03/2025 at
an initial estimated project cost of Rs.2900 crores approximately. He
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 senior counsel submits that prior to intimation
of work for laying said transmission network, the respondent No.3
had given a public notice in Times of India (In English), Rajasthan
Patrika (In Hindi) and in Divya Bhaskar (in Gujarati) on 18.06.2023
and in the weekly Official Gazatte on 22.07.2023 to intimate the
prospective affected farmers about laying of transmission line
across the fields of various villages. The learned senior counsel
submits that the respondent No.3 has followed the procedure as
prescribed under the Telegraph Act, 1885 as well as Indian
Electricity Act, 2003. He submits that the petitioners are in
possession of nine survey numbers and that the transmission tower
is being erected only in survey No.81. He submits that it is not
correct to say that transmission line is going to pass through the
entire industrial estate of the petitioners. The learned senior counsel
submits that the petitioners are in possession of total area
admeasuring 3,18,025 sq. mtrs. and the transmission line is passing
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through the subject land in total ROW area of 13,500 sq. mtrs. which
is only 12% of entire subject land. He submits that even the said
ROW area remains in ownership and possession of the the
petitioners for utilization of its proposed industrial estate and the
said proposed industrial purpose should not hinder any future
maintenance work and must not obstruct the overhead transmission
line as per the CEA Guidelines. The petitioners can very well utilize
their lands in question. The learned senior counsel submits that the
N. A. permission is not an absolute permission. The said permission
is subject to various conditions and one of the conditions in the said
N. A. permission is that it is subject to restrictions and laws
governing overhead electric line. The learned senior counsel
submits that in the present case, while fixing the transmission line
route, the most techno economically feasible route is chosen
causing least damage. The learned senior counsel submits that in
the present case, the subject transmission line is crossing existing
another 220 KV DC transmission line and it is mandatory for the
respondent No.3 to comply with the minimum height clearance
between crossing lines and also mandate minimum not less than 60
degree angle crossing between two power lines. The transmission
lines also require a clear corridor of 67 meters on either side from
the center of the transmission line. The said transmission line would
not have any impact on human beings, animals, plants etc. beyond
the statutory clearance/norms. 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 tower will change
the alignment of the entire line and will ultimately result in
demolishig and recasting various tower foundations at various
locations for which works have already been completed. The learned
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senior counsel submits that in view of the above submissions, the
present Special Civil Application be dismissed and the respondent
No.3 be directed to continue the work of laying of transmission line
in public interest and public welfare.
7. Heard the learned senior counsels for the parties and perused
the documents on record.
8. In the present case, the transmission tower is being erected
on the land 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 dated 11.12.2023 has been place 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
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 on 16.03.2024 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
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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. The learned
District Magistrate has held the hearings on 28.05.2024,
06.06.2024, 20.06.2024, 27.06.2024 and 05.08.2024. By the
impugned order, the learned District Magistrate has rejected the
objections of the petitioners and permitted the respondent No.3 for
laying the transmission lines.
9. That, the respondent No.3 has filed an application to the
authority for grant of approval for laying of overhead transmission
line under “Transmission system for evacuation of 4.5GW RE
injection at Khavda PS under Phase – II Part C”. Thereafter, the
respondent No.3 published a notice in the newspapers for the
general public to give objections/representation for the proposed
transmission route within two months from the date of such
publication. Subsequently, the respondent No.3 also submitted an
affidavit declaring that pursuant to the publication of the notice in
the local newspapers and the Gazette of India, ten(10)
representations have been received from the public on the proposed
route alignment and the clarification/reply has also been given to
the said representations. That thereafter, the respondent No.3
applied for authorization under Section 164 of the Electricity Act,
2003 to the Ministry of Power with respect to laying telegraph lines
and posts/towers established or maintained by the Government. The
said authorization came to be granted on 11.12.2023 by the Ministry
of Power, Government of India. Accordingly, upon being conferred
power of the Telegraph Authority, vide approval under Section 164
of the Electricity Act, 2003, the respondent No.3 herein has got
Right of Way to enter the land property for erection of tower and
laying of overhead transmission lines.
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10. Nothing has been brought on record by the petitioners that
pursuant to the public notice dated 18.06.2023, the petitioners had
made a representation to the concerned authority towards proposed
route alignment. Further, this Court, after filing of the present
Special Civil Application, has 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, which is not possible
at this stage. The another aspect which is to be taken note of in the
present case is that tower location No.217/0 coming in the way of
survey No.81 of the subject land of the petitioners cannot be
technically shifted as proposed by the petitioners since 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, there are two existing 220 Kv
DC transmission lines already passing through the land of the
petitioners and therefore also, 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 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
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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
07.12.2024.
11. The learned senior counsel for the petitioners that the
petitioners Mr. R. R. Marshall submitted that the petitioners have
obtained N.A. permission for the land in question and that they are
in the process of establishing an industrial park. The learned senior
counsel Mr. Kamal Trivedi appearing for the respondent No.3
submitted that after the impugned order dated 30.08.2024 came to
be passed under section 16(1) of the Indian Telegraph Act, 1885,
the petitioners have filed an application seeking N.A. permission for
industrial purpose with respect to survey No.81 admeasuring
1,29,795 sq. mtrs., which is an open land without any construction.
Before applying for N.A. permission, the petitioners are very well
aware of the location of Tower No.217/0 in the said survey No.81.
The learned senior counsel submitted that in the prescribed format
of application seeking N.A. permission, the petitioners have clearly
stated that no construction has per the approval plan has been
carried out. Further, the N.A. Permission for industrial purpose in
respect of the land bearing survey No.81 has not been granted till
date and the same will be granted subject to erection of
transmission tower and passing of overhead transmission line. The
learned senior counsel has submitted that N.A. order for block
No.93/paiki (survey No.81) in respect of 83,312 sq. mtrs. land was
granted on certain conditions and the specific condition No.12
thereon obliges the petitioners to comply with the regulatory
provisions with respect to the electric lines passing above or around
the said survey number. The learned senior counsel has placed on
record the N.A. permission which shows that the condition No.12
has been included in the said N. A.order and will be applicable for
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rest of the survey numbers also. This factual position has not been
disputed by the learned senior counsel Mr. R. R. Marshall appearing
on behalf of the petitioners.
12. The learned senior counsel Mr. Kamal Trivedi, in support of the
contentions, has relied upon the judgment of this Court in the case
of Gujarat State Energy Transmission Corporation Limited vs.
Ratilal Maganji Brahmbhatt (Barot) [2020(4) GLR 2642],
wherein the learned Division Bench, after considering all the
relevant sections of the Telegraph Act, 1885 as well as Electricity
Act, 2003, has concluded 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
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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,
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
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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,
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
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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,
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
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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-
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,
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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
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
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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]
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.
13. In view of the settled legal position, it is found that in the
present case, proper procedure has been followed by the
respondent No.3 and there is no violation of any legal provision in
respect of planing, erecting and laying of Ahmedabad – South
Gujarat/Navsari (new) 765 KV DC Transmission Line. Prior approval
has been obtained by the respondent No.3 under Section 68 of the
Electricity Act, 2003 from the Central Electricity Authority for laying
of transmission line. Thereafter, prior to initiation of the work, the
public notice came to be issued on 18.06.2023 in three newspapers
and in the Official Gazette. The objections, so raised, were also dealt
with and replied to by the respondent No.3. Thereafter, the Ministry
of Power has issued the order of authorization under Section 164 of
the Electricity Act, 2003 in favour of the respondent No.3 conferring
power of the Telegraph Authority for laying the subject transmission
line along with the details related to the villages in the districts of
the State of Gujarat, through which, the subject transmission line
under the said scheme is to pass. As per Rule 3(4) of the Works
Licenses Rules, 2003 made under Section 176(2)(e) read with
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Section 67(2) of the Act, 2003, nothing contained in the said rule
along with the requirement of prior consent of the owner would
affect the powers conferred upon any licensee under Section 164 of
the Act, 2003. That thereafter, the respondent No.3 also issued
notice for starting the work of foundation of Tower No.217/0 located
at survey No.81 within the land of the petitioners and upon
obstruction being raised, an application under Section 16 of the
Indian Telegraph Act, 1885 was filed before the respondent No.2.
Before the respondent No.2, hearings were conducted, in which, the
petitioners were heard and the impugned order under Section 16(1)
of the Indian Telegraph Act, 1885 came to be passed.
14. In view of the aforesaid observations, reasons and settled law,
no case is made out by the petitioners for grant of any relief as
prayed for. The Special Civil Application is devoid of merits and is
accordingly dismissed.
15. The learned senior counsel Mr. R. R. Marshall appearing for
the petitioners prays for continuation of status quo granted during
the pendency of the present Special Civil Application for a period of
two weeks so as to enable the petitioners to challenge the same in
appeal. The learned counsel Mr. Akshat Khare appearing for the
respondent No.3 opposes the said prayer and submits that the
respondent No.3 has to complete the project by 21.03.2025.
16. Considering the aforesaid submissions, the prayers for
continuation of interim relief is rejected. No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
cmk
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