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Judgment
Pratap Krishna Lohra, J.�Both these petitions involve common question of law and facts, therefore, both are heard together and disposed of by this common order.
For disposal of both the petitions, apposite facts pleaded by the respective parties in S.B. Civil Writ Petition No. 747/2014 are narrated for convenience hereinafter.
The petitioners of this writ petition are the agriculturists having agricultural land situated in Khasra No. 761 and 771 adjacent to each other in village Peshua, Tehsil Pindwara, District Sirohi, alongwith other lands. The land in question is duly mutated in their name and in support thereof Jamabandi has been placed on record. About a decade back, respondents installed 132 KV line dedicated for supply of power to J.K. Cement Industry and in the process respondents installed certain poles on the land belonging to the petitioners. As per the version of petitioners, at the time of installation of poles, objections were raised but after due negotiations agreed for installation on an assurance given by the respondents that compensation shall be paid to them. Complaining about detraction from commitment, the petitioners have very categorically averred in the petition that no compensation was paid to them.
Ventilating grievances, the petitioners have pleaded in the writ petition that 132 KV lines are very huge high tension lines requiring erection of mammoth pillars and flow of electricity in these lines is tremendous. Projecting with emphasis that in 132 KV line the flow of electricity can create strong magnetic field within the surrounding area, which is obviously agricultural land, and cultivation around the poles is not feasible and the apprehension of electrocution of the cultivator is imminent.
Narrating some of the facts which have necessitated raising heights of the towers already erected by the respondents to convert it from 132 to 220 KV line for facilitating supply to J.K. Industries, the petitioners have submitted in the writ petition that the Executive Engineer of respondent Corporation came at the site and inspected it. When inquiry was made by the petitioners, evasive answers were given. However, subsequently, the Executive Engineer and other officers informed the petitioner that new towers are to be installed over their agricultural land and the same shall require the land with 100 ft width for erection on both the sides of towers. Immediately when the said information was divulged to the petitioners by the officials of the respondent Corporation, the petitioners requested them to furnish details about installation and orally conveyed them not to go ahead with the installation/erection of towers for the reason that the petitioners have already suffered huge loss on account of installation and operation of earlier lines of 132 KV without payment of compensation.
The version of the petitioner as depicted in the writ petition is that the officers of the respondents declined the request and conveyed them in clear and unequivocal terms that installation shall be carried out without acquisition of land and without paying any compensation. It is also pleaded in the writ petition that the petitioners made endeavor to solicit certain information and documents from the respondents but nothing was done at their end.
Highlighting the alleged stubborn attitude of the respondent, the petitioners have stated in the writ petition that the work order has been issued to the contractor for carrying out work of installation of towers on 04.12.2013 and the work is likely to be completed within a short period. Questioning the action of the respondents, the petitioners have averred in the petition that without initiating appropriate acquisition proceedings vis-�-vis the land in question and paying requisite compensation, the respondents cannot be allowed to go ahead with their mission of installation of towers. The pamphlet circulated by the respondent Corporation in public interest was also placed on record. The sum and substance of the petitioners in the writ petition is that the installation of towers without due procedure of law and without acquisition of land cannot be permitted and for that purpose representation submitted by the petitioners on 16.01.2014 is also placed on record.
In the prayer clause, the petitioners have sought a restraining order against the respondents for not interfering with the possession and cultivation of the land belonging to them. In the alternative, it is also prayed that the respondents may be permitted installation/erection of towers on the land of petitioners after initiating appropriate land acquisition proceedings and payment of adequate compensation.
The writ petition is contested by the respondents and reply is submitted. Joining issue with the petitioners on factual aspects, the respondents have submitted that the line is dedicated line and is installed to cater the need of the public of Abu Road. Refuting the allegation of the petitioners that 132 KV line is dedicated line for supply of power to J.K. Industries, it is submitted that the line is traveling up to Abu Road and not to supply power to J.K. Industries. Adverting to the objection of the petitioners for installation of tower on their land, the respondents have submitted in the reply that legal position on the issue is no more res-integra and it has already been set at rest by a catena of judgments of this Court and the action of the respondents is also in consonance and in conformity with the Electricity Act, 2003 (for short, ''Act of 2003'') read with the Act of 1885.
While referring to the aforesaid legislative enactments, the respondents have pleaded with emphasis that they are empowered to use any public, private, or agricultural land for placing electric line or plant for transmission of electricity for the purpose of supplying electricity to the public. A reference is also made to Section 164 of the Electricity Act 2003, which according to respondents empower them to put electricity line or electrical plant for transmission of electricity for proper coordination of the work and for that purpose powers conferred under the Act of 1885 to the Telegraph Authority can be applied.
Adverting to Section 10(3) of the Act of 1885, the respondents have pleaded in the reply that for claiming compensation the petitioners can very well invoke jurisdiction of competent civil Court and satisfy the authority whether they are entitled for compensation or not but on that pretext the incumbent cannot be allowed to jettison the proposed electricity line or electricity plan for transmission of electricity. According to respondents, the proper way for claiming compensation is to approach the District Judge concerned within whose jurisdiction property is situated.
Refuting the allegations of the petitioners that on account of construction of four track railway line there is a proposal to change the electricity line from 132 KV to 220 KV and joining the issue with the petitioners on this count, the respondents have categorically averred in the reply that apprehension of the petitioners in this behalf is unfounded.
On the issue of raising height of the tower, it is submitted in the reply that work would be undertaken in order to see that four track railway lines becomes functional. It is also submitted in the return that the respondents have taken approval from the railway administration to relocate the electricity line as per their norms. In the reply it is clarified that electricity line passing through agricultural land of the petitioners is age-old. Highlighting the reason for change in the allocation of the railway tracks, the respondents have submitted that certain more towers/poles are required to be installed and for that purpose it is not necessary for the respondents to seek prior permission of the petitioner.
Taking shelter of the Act of 2003 and the provisions of the Act of 1885, the respondents have once again reiterated that no prior permission or notice is required to be given to the petitioners for installation of any electricity tower or relocation of electricity line which already exists since long. Joining the issue with the petitioners to the extent of their objection that acquisition of land is pre-requisite for facilitating work of installation of towers, the respondents have pleaded with clarity and precision that no such requirement is envisaged under the Act of 2003 read with provisions of the Act of 1885.
On the issue of compensation, the respondents have submitted in the reply that the same cannot be decided in a petition under Article 226 of the Constitution of India because determination of compensation involves disputed question of facts.
Subsequent to submission of reply by the respondents, petitioners made endeavour to submit additional pleadings. In the rejoinder, the petitioners have pleaded that Section 164 of the Act of 2003 can be invoked by respondents provided an order is issued by the Energy Department of the State of Rajasthan permitting the applicability of the provisions and powers of the Act of 1885 upon the respondent company. As per petitioners, no such order or permission has been accorded by the State of Rajasthan to the respondents. In the alternative, it is also pleaded by the petitioners that even if it is presumed that the State Government in exercise of powers of the Act of 1885 has permitted the respondents to exercise power under Section 10 of the Act, the respondents cannot be permitted to shirk from their responsibility to pay compensation to the petitioners. Once again reiterating that earlier also poles were erected on the land of the petitioners but no compensation was paid, petitioners have averred that again the respondents are bent upon to erect poles on their land without making any commitment for payment of the requisite compensation.
In response to rejoinder submitted by the petitioners, on behalf of respondent, an additional affidavit is submitted. In the additional affidavit, the Executive Engineer (C&M) Sirohi has stated that the respondents are empowered to enter into agricultural premises or for that purpose any land for installation of electricity line, electricity pole and for erection/construction/modification of any electricity line including 132 KV line. Notification issued by the Chief Engineer (T&C), Jaipur dated 5th of March 2014 is also placed on record which is issued pursuant to the earlier notification dated 28th of February 2004, whereby sanction of right of way was accorded for erection/construction/modification of 132 KV S/C Pindwara - Abu Road line for raising height of railway track crossing Swaroopganj and Banas at Km 567/1-2 CH.90260 (line length approx. 0.802 km) for supply of electricity line passing through the boundary/revenue areas of Peshua, Adarsh, Doongari, and Rampura villages. Yet another Notification of even date is also placed on record showing sanction of right of way for erection/construction/modification of 132 KV S/C Pindwara-J.K. Laxmi Cement line for raising height of railway track crossing Abu Road-Pindwara at Km 599/6-7CH.97760 (line length approx. 0.625 km). Copy of original notification issued by the Energy Department, which was published in the Rajasthan Gazette Extraordinary on 8th March 2004 is also produced during the course of hearing.
Mr. Sandeep Shah, learned counsel for the petitioners, has argued that the respondents cannot be permitted to enter the land of the petitioners and make use of the land for installation of towers without initiating appropriate acquisition proceedings. Mr. Shah submits that installation of towers would deprive the petitioners from their huge agricultural land for which the respondents are not authorized inasmuch as there is no notification authorizing the respondents for erection of towers on the land of the petitioners within the four corners of Section 164 of the Act of 2003 read with Section 10 of the Act of 1885. The learned counsel for the petitioners has also submitted that on the strength of doctrine of quid pro quo without payment of adequate compensation the respondents cannot be permitted to use land of the petitioners at their whims. In the alternative, Mr. Shah has submitted that assuming it that the towers are available with the respondents then too under Section 10(3) of the Act of 1885 the respondents are under an obligation to pay full compensation for the damages sustained by them.
Per contra, Mr. Manoj Bhandari, learned counsel for the respondents has argued that respondents are well within their rights to enter into agricultural premises or for that purpose any land for installation of electricity line, electricity pole and for erection/construction/modification of any electricity line including 132 KV line. Placing reliance on the notifications dated 5th of March 2014, Ex. R/1 and R/2, learned counsel for the respondents has submitted that the Energy Department, Government of Rajasthan, Jaipur by issuing notification dated 28th March 2004 under Section 164 of the Act of 2003 as well as powers of Telegraph Authority under the Act of 1885 has authorized the Chief Engineer, RRVPNL to erect electric lines/electric plants for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for proper coordination of the work. Mr. Bhandari has also placed reliance on the notification dated 28th March 2004, which was published in Rajasthan Gazette Extraordinary on 8th March 2004 issued by the Secretary to the Government, Energy Department, Rajasthan, whereby Government of Rajasthan has transferred the rights relating to procurement and bulk supply of electricity or trading of electricity from RRVPNL to the three distribution companies, viz., Ajmer Discom, Jaipur Discom and Jodhpur Discom w.e.f. 1st of April 2004. Relying on the said notification, learned counsel Mr. Bhandari would contend that the said notification has been issued by the Energy Department while exercising powers conferred by Section 164 of the Act of 2003 subject to certain restrictions and the provisions of the Act of 1885, and therefore, the objection of the petitioners against installation of towers is not at all tenable. Mr. Bhandari learned counsel for respondents has also argued that it is necessary to initiate acquisition proceedings in view of the notification issued by the Energy Department. Adverting to the compensation, Mr. Bhandari would contend that the petitioners are well within their rights to claim compensation provided under Section 10(d) of the Act of 1885 in accordance with law by raising dispute before the District Judge within whose jurisdiction property is situated. In support of his arguments, Mr. Bhandari has placed reliance on a decision of Jaipur Bench of this Court in case of Smt. Nanchi Devi & Ors. Vs. RRVPNL, Jaipur & Ors. (S.B. Civil Writ Petition No. 11973 of 2008) decided on 18th of March 2009. The learned Single Judge of this Court, while examining almost identical issue, has held as under:
"A conjoint reading of S. 164 of Act, 2003 & 10 of Telegraph Act depicts that for exercise of powers to erect transmission of electricity supply line and for laying poles or constructing any tower, no prior consent of notice or intimation to enter into property is necessary and only right to the owner or occupier of the property/land is to claim compensation as provided U/s. 10(d) of the Act, and their act of placing poles for laying electric line in fields of petitioners cannot be said to be unauthorized or a trespass.
However, U/s. 16(1) of Telegraph Act, in exercise of powers U/s. 10 in respect of property referred to in clause (d) of S. 10 is resisted or obstructed, the District Magistrate may, in its discretion order that telegraph authority shall be permitted to exercise them and still after an order being made U/s. 16(1) any person resists in exercise of those powers, or, having control over property, does not give all facilities for exercising powers, such person resisting in exercise of powers is considered to be deemed to have committed an offence U/s. 188 of Indian Penal Code, in term of S. 16(2) of the Act. What protection has been provided to private person is that if on being not satisfied with compensation awarded to him as regards damages to his property, for sufficiency of compensation, U/S. 16(3) of Telegraph Act, he can raise dispute before District Judge within whose jurisdiction property is situated; and such determination of dispute made by District Judge U/Ss. 16(3) or 16(4) shall be final by virtue of S. 16(5) of Telegraph Act."
Mr. Bhandari has also placed reliance on a decision of Uttrakhand High Court in this behalf in case of Suresh Kumar Saini Vs. Power Grid Corporation of India Ltd. and Others, . The Uttrakhand High Court has held in Para 4 & 5 as under:
A Division Bench of the Allahabad High Court in Jagir Lal and Another Vs. State of U.P. and Others, after considering the provisions of law has held as under:--
There is no requirement of obtaining any consent of owner before laying a transmission line by an authority exercising power under Section 164 of the Electricity Act, 2003.
When owner of the property from where the transmission line is to be drawn obstructs or resists laying down of a line, it is open both for the owner as well as to the authority to approach the District Magistrate for appropriate orders and the District Magistrate in his discretion may permit the laying of the line or refuse such permission.
The owner from whose line the electric line is drawn, is entitled for compensation from the authority and in the event he is dissatisfied with the amount of compensation, his remedy is to make an application before the District Judge under Section 16 sub-section (3)."
This Court is totally in agreement with the findings arrived at by the Division Bench of the Allahabad High Court, which is presently applicable to the present case. Therefore, the present writ petition is disposed of with a direction that the petitioner as well as the respondent - Power Grid shall approach to the District Magistrate, Haridwar, who shall consider the case of the parties in the light of the provisions mentioned in the body of the judgment and pass appropriate orders in accordance with law. Needful be done within four weeks from the date of production of a certified copy of this order. No order as to costs.
I have heard the learned counsel for the parties and perused the materials available on record.
Upon perusal of the materials available on record and on examining true purport of Section 164 of the Act of 2003 and Section 10 of the Act of 1885, in my considered opinion, the objection of the petitioners against installation/erection of towers on their respective agricultural lands without initiation of appropriate land acquisition proceedings and payment of adequate compensation is per-se misplaced. The documents Ex. R/1 and R/2 and the gazette notification dated 8th of March 2004 issued by the Energy Department, Government of Rajasthan, speaks volume about the fact that the respondents are authorized to enter into agricultural land of the petitioners for installation of electricity line, electricity pole and for erection/construction/modification of any electricity line including 132 KV line. My this view is fully endorsed by the judgment of coordinate Bench of this Court supra and the judgment rendered by Uttrakhand High Court. As regards the question of grant of compensation to the petitioners for the damage sustained by them, the remedy is available to the petitioners under Section 16 of the Act of 1885 wherein all disputes concerning sufficiency of compensation to be paid and entitlement of an individual to receive compensation including share of an interested person in it has been dealt with. It is also envisaged with clarity and precision that such determination can be made by the District Judge concerned within whose jurisdiction land is situated. Therefore, apprehension of the petitioners that they would not be paid compensation for the damage suffered by them on account of installation of towers is per-se not tenable. The petitioners can very well invoke jurisdiction of a competent civil Court for claiming the requisite compensation in accordance with law. Thus, viewed from any angle, the grievances of the petitioners against the respondents for installation of the towers for facilitating transmission of electricity for the purpose of supplying electricity to public at large is wholly untenable and so also the apprehension of the petitioners that they would not be paid requisite compensation for the damages sustained by them due to said action of the respondents.
The upshot of the above discussion is that I find no merit in both these petitions and the same are accordingly dismissed subject to the observations made supra.
No orders as to costs.
A copy of this order be placed in connected case file of S.B. Civil Writ Petition No. 767/2014.