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2011 DIGILAW 399 (GUJ)

SAGAR HARDAS PUNJA THROUGH POWER OF ATTORNEY BHARATBHAI v. DEPUTY EXECUTIVE ENGINEER

2011-05-05

J.B.PARDIWALA, SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT J.B. PARDIWALA, J. The appellants have preferred this Appeal under clause 15 of the Letters Patent, calling in question the legality, validity and propriety of the judgment and order dated 28th February 2011 passed by the learned Single Judge in Special Civil Application No.2490 of 2011, whereby the learned Single Judge dismissed the writ petition preferred by the appellants – original petitioners. Brief facts relevant for the purpose of deciding this Appeal can be summarised as under:- 1. The appellants are the agriculturists. They possess and own agricultural land bearing Survey No.38 of village Dairi Ambardi, Taluka Jamjodhpur, District Jamnagar. 2. It appears that the respondent decided to erect electricity polls in Survey No.38 of the ownership of the appellants for providing electricity to Survey Nos.42, 43, 44 and 45. 3. The record reveals that the appellants objected to this decision of the Electricity Company to erect electricity polls in the land of the appellants. The objection was mainly on the ground that if such polls are erected, then it will cause undue hardship to the appellants and the value of the agricultural land would also be affected. The objection was also on the ground that such erection of electricity polls would hamper the agricultural activities that may be undertaken by the appellants in Survey No.38. 4. Record reveals that objections in writing were lodged by the appellants with the respondent and the respondent responded by calling for certain documents from the appellants. In the meantime, it appears that the respondent preferred an application in the form of a complaint before the District Magistrate, Jamnagar. In the said application, which is at Annexure-F to the main petition, the respondent complained to the Collector that the appellants are creating unnecessary obstructions so far as the work of erecting of electricity polls in Survey No.38 is concerned. The respondent prayed for necessary relief seeking directions from the District Magistrate to restrain the appellants from creating any obstruction. 5. The record further reveals that the District Magistrate, Jamnagar registered the complaint of the respondent as Electricity Case No.12/2010 and vide order dated 7th January 2011, directed the appellants that they should not create any obstruction in the process of erection of electricity polls. 6. 5. The record further reveals that the District Magistrate, Jamnagar registered the complaint of the respondent as Electricity Case No.12/2010 and vide order dated 7th January 2011, directed the appellants that they should not create any obstruction in the process of erection of electricity polls. 6. The appellants, therefore, preferred Special Civil Application No.2490/2011 and prayed for appropriate writ, order and/or direction to quash and set-aside the order dated 7th January 2011 passed by the District Magistrate, Jamnagar in Electricity Case No.12/2010. The appellants also prayed for interim relief pending the final disposal of the writ petition restraining the respondent from erecting electricity polls in Survey No.38. 7. The case of the appellants before the learned Single Judge was to the effect that the order passed by the District Magistrate is illegal, in as much as, the power has been exercised under the Electricity Act, 1910 (Repeal Act), which has been repealed as per the Indian Electricity Act, 2003 and, therefore, the order would be a void order. It was also submitted before the learned Single Judge that without the consent of the appellants, the respondent could not have taken decision to erect the electricity polls in Survey No.38. The main bone of contention as it appears from the record and the order of the learned Single Judge is, that there is an alternative land available with the respondent for the purpose of erecting electricity polls, which is a Government waste land bearing Survey No.37. According to the appellants, the electricity polls can be easily erected in the said waste land bearing Survey No.37 of the ownership of the State Government. The contention of the appellants was that a person should not be deprived of his valuable land, more particularly, an agricultural land, which provides the source of livelihood, when the authorities have an alternative land available for the same. The learned Single Judge considered all the relevant aspects of the matter and, ultimately, came to the conclusion that the petition was meritless and accordingly dismissed the petition. The learned Single Judge took the view, and to our mind, very rightly, that it cannot be said that the powers have been exercised under the Repeal Act of 1910. The learned Single Judge considered all the relevant aspects of the matter and, ultimately, came to the conclusion that the petition was meritless and accordingly dismissed the petition. The learned Single Judge took the view, and to our mind, very rightly, that it cannot be said that the powers have been exercised under the Repeal Act of 1910. The learned Single Judge observed that, though the provisions of the Indian Electricity Act, 1910 has been referred, it cannot be said that merely because reference has been made to the old Act, entire action is void when the appellants themselves preferred application under the said act read with Section 16 of the Indian Telegraph Act, 1985. The learned Single Judge also rightly took into consideration Section 185 of the Electricity Act, 2003, which provides for repeal and saving. However, in the present Appeal, learned counsel for the appellants vociferously submitted and requested the Court to consider the alternative submission so far as the other land available with the authorities is concerned. Learned counsel laid emphasis on the fact that Survey No.37 is a Government waste land, which can be used for the purpose of erection of electricity polls. It appears that this aspect was also duly considered by the learned Single Judge and after considering the map and other relevant documents, the learned Single Judge noticed that if electricity polls and electricity lines are to be taken through Survey No.37, it would be in a zigzag manner and it was not technically feasible. It is a settled position of law that suitability of the land sought to be acquired or used for any public purpose is not to be adjudged by the Court in exercise of power under Article 226 of the Constitution of India. It is for the appropriate authority/Government to decide as to which particular land would be more suitable for the public purpose in question. In this connection, reference can be made to a decision of the Supreme Court in the case of State of Punjab v/s. Gurdial Singh, reported in AIR 1980 SC 319 . In paragraph 8 of the reported decision, the Hon'ble Supreme Court has, inter alia, observed as follows:- “This power to select is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). In paragraph 8 of the reported decision, the Hon'ble Supreme Court has, inter alia, observed as follows:- “This power to select is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.” Again in the case of Ramgir Uttamgir Goswami v/s. State of Gujarat, reported in 1988(1) GLR 502, the Hon'ble Supreme Court has, in paragraph 7 of the reported decision, observed that the assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the authority to consider. Paragraph 7 of the judgment reads as under:- “The next submission of Mr. Mehta was that the land acquisition authorities have failed to consider what were the other lands available which could have been more conveniently acquired for the public purpose referred to earlier. It was pointed out by him that in the writ petition, the appellant (petitioner) has alleged that he could have pointed out certain other lands and open spaces where the twelve families rendered homeless by the floods of Tapti river could have been housed. With reference to these allegations, the respondents in their counter-affidavit filed before the Gujarat High Court have rightly pointed out that the appellants had not given any details regarding other more suitable lands available for acquisition and hence it was not open to him to make a grievance on that score. Moreover, in paragraph 29 of the counter-affidavit, the respondents have pointed out that the lands referred to by the appellant in his petition were not suitable for housing the victims of the floods because they were low-lying lands and not suitable for residential purposes. The assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the Land Acquisition Officer to consider and no good reason has been shown to us which could warrant interference with his decision. The assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the Land Acquisition Officer to consider and no good reason has been shown to us which could warrant interference with his decision. Moreover, we are satisfied that the appellant had not even given proper particulars of the other lands which, according to him, were available for acquisition and were more suitable for acquisition and hence he can make no grievance on the score of proper consideration not having been given to the question of acquiring of such lands.” We are of the view that it cannot be said that the land has been selected in breach of any of the constitutional provisions. It is not even argued or urged that any of the constitutional provisions have been violated in selecting the land i.e. Survey No.38 of the ownership of the appellants. Therefore, no case for interference with the decision of the statutory authorities in selecting the land is made out by the appellants. It is evident from the record of the case that the authorities have considered all other alternatives and on consideration of all the relevant aspects, the land has been considered suitable i.e. Survey No.38 for the purpose of erection of electricity polls. Therefore, the contention that other alternative land was available, and on that ground, the respondent ought not to have taken the decision of erecting electricity polls in Survey No.38, has no merit. In this view of the matter, we do not find any error, much less an error of law, said to have been committed by the learned Single Judge in dismissing the writ petition. No interference is warranted in this Appeal. The Appeal deserves to be dismissed and is accordingly ordered to be dismissed with no order as to cost.