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2015 DIGILAW 115 (JK)

Vinod Chatter v. State of J&K

2015-03-25

B.L.BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar; CJ.:- 1. This LP Appeal is preferred against the order of the learned single Judge made in OWP No. 709 of 2007 dated 23.4.2008 wherein the appellants have prayed for issuing a writ of mandamus directing the respondents to realign the laying of high voltage electric transmission lines to safeguard the property of the appellants and align the electric lines in such a way not to jeopardize any property or human life of the inhabitants. The brief facts necessary for disposal of the LP Appeal are that the appellants' residential houses are situated in Baghi Wanpoh, Tehsil and District Kulgam, Kashmir. Appellants are the migrants from the valley. Respondents have erected pillars to lay high tension wires over and above the houses of the appellants for transmission of High Tension (Voltage) electricity. The said proposed transmission lines are directly falling over the house of the appellant No. 2 and if the proposed transmission lines were allowed to be laid, the property of the appellants will be unworthy of habitation and they will be deprived from using the property and the life of the human being inhibiting the houses will get exposed to serious risk. The property of the appellants have not been acquired nor notified for acquisition and the proposed action of the respondents will seriously prejudice their fundamental rights as well as the statutory rights. Initially Power Grid Corporation of India Limited, Northern Region-II Grid Bhawan (near Bahu Plaza), Rail Head Complex, Jammu was impleaded, however the said corporation name was deleted by order of the Court dated 31.12.2007. 2. The said writ petition was resisted by the respondents 5 to 7 stating that the issue involved in the writ petition has already been decided by the Division Bench of this Court in LPA No. 131 of 2001, Judgment dated 16.12.2004 and the issue in this case is covered by the said Judgment. It was also contended that the construction of Qazigund-Baramulla railway line is a national issue and its projection has necessitated diversion of 220 kv double circuit Kishanpore-Pampore transmission line also at various crossing points including diversion point for which alignment over partly built houses as stated by the appellants was fixed after proper survey and taking into account technical feasibility. It was also contended that the construction of Qazigund-Baramulla railway line is a national issue and its projection has necessitated diversion of 220 kv double circuit Kishanpore-Pampore transmission line also at various crossing points including diversion point for which alignment over partly built houses as stated by the appellants was fixed after proper survey and taking into account technical feasibility. Since power transmission line is very much essential on public interest for the benefit of the public and appellants' interest being individual, public interest will prevail. It was also stated that except one portion of the property, no construction was made and the diversion of 220 kv double circuit Kishanpore-Pampore transmission line has been aligned to pass over the land of the appellants in which partly burnt houses are located. There is no rule or provision to pay compensation on account of passing of power lines over the land of the land owner. The concerned Executive Engineer, Transmission and Maintenance Division-IV, Pampore, who has been arrayed as party respondent has communicated to the Deputy Commissioner, Kulgam through communication dated 6.10.2007 for processing the compensation assessment under Rules insofar as the partly burnt houses are concerned and the said process was under consideration. It was also stated therein that for the damages caused to the property of the appellants, compensation will be calculated and has to be paid after proper assessment. In view of the said Division Bench Judgment which was directly on the issue, learned single Judge dismissed the writ petition. 3. The contention of Mr. Virender Bhat, learned counsel for the appellants in this appeal is that the Judgment relied on by the learned Single Judge in LPA No. 131 of 2001 dated 16.12.2004 is that there was difference of opinion between the two judges of the Division Bench, due to which the matter was referred to the third Judge and the third Judge held that so long as the transmission lines are laid overhead, for implementing the sanctioned scheme based on the original project report within the frame work of the statutory power of the respondents, no interference by the Court is warranted as the State has got sovereign right to provide electric lines for laying transmission lines for implementing the scheme for approved project. Learned counsel further submitted that in the said case the land was a open land in which no house was there and in this case there are houses in the subject matter of the route and some of the houses got partially burnt. The appellants are also claiming easementary right over the land and if the transmission lines are laid over their property, their right to use the property will be affected. The learned counsel also submitted that the earlier Judgment having been rendered in the above stated circumstances viz., difference of opinion between two judges and third Judge concurred with one view, the said judgment may not be treated as correct proposition of law and the matter requires reconsideration by a larger bench. 4. We have also heard Mr. G.S. Thakur, learned counsel appearing for the respondents. 5. We have considered the submissions of the learned counsels appearing for the appellants as well as respondents, gone through the Division Bench Judgment relied on by the respondents and the counter affidavit filed by the respondents before the learned single Judge in the writ petition. 6. The alignment of the transmission line over the appellants' land and the circumstances under which the diversion has taken place is explained by stating that the same was due to construction of the Qazigund-Baramulla railway line, which is a scheme approved by various authorities, including the Railway Board. The Judgment of the Division Bench viz., L.P.A. No. 131 of 2001 dated 16.12.2004 has dealt with the issue wherein it is stated that if the scheme is sanctioned as per Jammu and Kashmir Electricity Act, 1997, the person affected due to laying of transmission line can only claim damages, as the ariel right of the way continues to be with the State and the individual land owners cannot claim any right thereof, and as per Section 18 of the Act compensation for damages can be claimed. Section 18 of the Act reads as follows: "18. Compensation for damages- (1) A licence shall, in exercise of any of the powers conferred by or under this Act, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him." The contention of the respondents in that case was accepted holding that Public interest will prevail over private interest. The said issue i.e., if the electricity lines are drawn as per the approved scheme, the land owners cannot object drawing of the transmission line was already considered by the Supreme Court and the view taken by the Division Bench in the above referred case is based on the settled proposition of law. In the decision reported in AIR 2005 SC 2299 (Master Marine Services (P) Ltd. V. Metcalfe & Hodgkinson (P) Ltd.) the Honourable the Supreme Court observed thus, ".......The modern trend points to judicial restraint in administrative actions........Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure......Even when some defect is found in the decision-making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, should the Court interfere. (p. 2304)" 7. In such circumstances, we are in entire agreement with the decision of the earlier Division Bench judgment and the submission made by the learned counsel for the appellants to refer the issue to the larger Bench cannot be sustained, as the issue is already settled by the Supreme Court, which we also concur with. 8. There is no merit in the LP appeal and same is dismissed. No costs.