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Jharkhand High Court · body

2008 DIGILAW 569 (JHR)

Bibi Jamila v. State of Jharkhand

2008-06-10

R.A.PRASAD

body2008
Order When the construction of a High Tension Transmission Tower was going on allegedly on the land of the petitioner for laying overhead High Tension Transmission line, this writ application was filed for issuance of an appropriate writ directing the respondents including Damodar Valley Corporation (for short 'Corporation') to stop the construction of the said Tower, as the same was being constructed without resorting to the provision of the Land Acquisition Act for the acquisition of the said land and without compensation being paid and as such the prayer has also been made directing the respondents to pay adequate compensation for the land on which transmission tower is being constructed. 2. The case of the petitioners, as has been made out in the application, is that the petitioners are the rightful owners of the land over which transmission tower is being constructed and overhead transmission line is being laid, though the Authorities never acquired the land and paid any compensation for the same. 3. It has also been stated that the said transmission tower is being erected within 30 meters of the house of one of the petitioners, which would be quite unsafe for the life and property of the petitioners. 4. Whereas, as per the case of the Corporation, as disclosed in the counter affidavit, when the work of the construction of the transmission tower got started, no house was there near the tower but as soon as the work got started, the petitioners started making construction of a house and hence on this account, no relief can be granted to the petitioners. 5. It has also been stated that the Corporation under Section 10 of the Telegraph Act has been empowered to construct High Tension Transmission Tower and to lay transmission line for which no land is required to be acquired. However, the person would be entitled to get compensation for the damages suffered, but in the instant case no damage has been done either to standing crops or to the buildings and hence the question of grant of compensation does not arise. Thus, there has been absolutely no merit in this application and hence it deserves to be dismissed. 6. From the pleadings of the parties. It does appear that a High Tension Transmission Tower was constructed over the land of the petitioners. Thus, there has been absolutely no merit in this application and hence it deserves to be dismissed. 6. From the pleadings of the parties. It does appear that a High Tension Transmission Tower was constructed over the land of the petitioners. In that situation, keeping in view the constitutional right one does have under Article 300A of the Constitution vis a vis right conferred to the Corporation by the Governor of Bihar under Section 51 of the Indian Electricity Act to put construction of the transmission tower and to lay transmission line under Section 10 to 19 of the Telegraph Act and also keeping in view the provisions of Section 100 of the Telegraph Act whether the person on whose land the transmission tower was constructed will have right to get compensation? More or less similar issue was there in a case of Madan Mohan Sharma and others vs. The State of Bihar and Others reported in 1998(3) PLJR 715, where on the pleadings of the parties regarding his entitlement to get compensation of the land over which the transmission tower was fixed and also to the land over which overhead transmission line was laid, following issues fell for consideration before the Division Bench of this Court. (i) Whether statutory Corporation, like D.V.C. can erect High Tension Transmission Tower and lay overhead High Tension line on the land of the petitioners without payment of adequate compensation under the law and secondly; (ii) Whether by depriving the petitioners from using their lands at their own choice, the D.V.C. is interfering with the fundamental right of the petitioners. 7. Their Lordships after taking into consideration the various provisions of the Indian Electricity Act as well as Indian Telegraph Act and also regard being had that the right to property no longer remains a fundamental right after repeal of Article 19 (1 )(f) and 31 of the Constitution by 44th Constitutional amendment though one has now got only constitutional right by virtue of the provisions of Article 300A of the Constitution, answered the questions in following terms:- "I. (a) Statutory Corporation like D.V.C. cannot erect high tension transmission tower over the petitioners' land without payment of adequate compensation under and in accordance with the law under which it was acquired or taken possession of for erection of such tower. (b) If, on account of overhead high tension line over their land, the petitioners had suffered any damage or detriment to their property, they are entitled to adequate compensation for such damage or detriment under and in accordance with the Indian Telegraph Act and Indian Electricity Act. II. (a) There is no fundamental right to property after repeal of Articles 19(1 )(f) and 31 of the Constitution by 44th Constitution amendment. Now, right to property is only a constitutional right as is contained in Article 300A of the Constitution. Such a right cannot be inferred with except in accordance with law. (b) It is true that the D.V.C. by laying overhead high tension line over their land has restricted/deprived the petitioners from using it at their choice. But such restriction/deprivation is in accordance with law, i.e. the Indian Telegraph Act and the Indian Electricity Act. There is, thus, neither any violation, of their right to property as contained in Article 300A of the Constitution, nor is their any interference with any of their fundamental rights. If there is any detriment or damage to their property on account of the exercise of power by D.V.C. or its employees under the aforementioned Acts, the petitioners can claim compensation for such detriment or damage under and in accordance with law." 8. In view of the aforesaid propositions of law laid down by this Court, it would be open for the petitioners to claim compensation before an appropriate authority under the Act on, account of any detriment or damage to their properties on account of exercise of the power by the Corporation or its employees under the provisions of Indian Electricity Act read with Indian Telegraph Act which shall be decided by the Authority in accordance with law. 9. With this observation, this writ application stands disposed of.