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2015 DIGILAW 573 (JK)

Zahoor Ahmad Shah Watali v. State

2015-11-04

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. This petition was tagged with OWP Nos. 543/2010 and 43/2010 but stand segregated as per the order recorded thereon so is taken up for hearing separately. 1. The case was firstly argued by associate lawyer Mr. Feroz Ahmad and reserved for orders. Subsequently, the engaged counsel Mr. M.A. Qayoom appeared in the second half of the day and submitted that in addition to what has been argued by his associate Advocate, he wants to file written arguments which he has filed, same are available on the records. Heard learned counsel for the parties and perused the record. 2. From the reply as filed by the respondents what transpires is that a proposal for laying of 220 KV double circuit transmission line from Zainakote to Mir Bazar via Alsteng was approved in the year 2004-05 by Government of India under Prime Ministers reconstruction Plan. After completion of preliminary works, the work of laying tower foundation was taken up strictly as per route profile/tower schedule duly approved by the competent authority. In Zainakote-Alsteng section of said transmission line, out of 158 tower foundations, 140 have already been laid. The foundation at tower location No. 49C and 51A has already been laid while as subject tower i.e. location No. 50-A falls in the land of the petitioners. 3. The petitioners have filed the instant petition projecting therein that they are owners in possession of the land covered by survey Nos. 1057/818/754/114, 819, 113, 873, 860, 113/min, 115/min, 818/min, 702, 112, 116, 61 and 71 situated at Sozeith Goripora Tehsil Beerwah. The petitioners conceived a plan of constructing 18 number of residential flats (three storied each) over the said land. In connection therewith, have applied to the Building Operations Controlling Authority (Commissioner, Srinagar Municipal Corporation (hereinafter for short referred to as the Authority) for grant of necessary permission. The Executive Engineer Electric Inspection Division, Srinagar after conducting spot inspection vide his letter No. EIDS/906, dated 23.06.2008 had informed the Authority that no line is passing over or adjacent to the proposed construction, therefore, there is no objection to the petitioners in undertaking the construction within the specified setbacks. The Authority also asked Srinagar Development Authority for no objection. The Senior Town Planner, SDA, vide his letter No. SDA/STP/254, dated 21.08.2008 has also informed the Authority about its no objection. 4. The Authority also asked Srinagar Development Authority for no objection. The Senior Town Planner, SDA, vide his letter No. SDA/STP/254, dated 21.08.2008 has also informed the Authority about its no objection. 4. The Authority after considering the reports has granted permission in favour of the petitioners for construction of 18 number of residential flats (three storied each). The petitioners claim to have raised construction of the said flats and have also raised the compound walling. While being in the process of completing the construction, the respondents allegedly without the permission of the petitioners have started laying of transmission line over the petitioners' land which will cross over the duly raised structures by the petitioners. Petitioners claim to have represented to the respondent-authorities not to lay the transmission line over the land of the petitioners which they refused. They were also requested to change the alignment of the transmission line which too was refused when in terms of Section 11(2) of the Electricity Act, 1997, without the consent of the owner/occupier, the respondent-authorities have no competence to lay the transmission line over the land/structure. Finally, petitioners have prayed for issue of writ of Prohibition so as to prohibit the respondents from laying down electric transmission supply line through petitioners land and structures raised thereon with a further writ of Mandamus so as to command the respondents to change the alignment of the transmission line from the one which is under contemplation. 5. Respondents in their reply have not denied the fact of no objection conveyed by the Executive Engineer Electric Inspection Division, Srinagar mentioning therein that no power line is passing over or adjacent to the proposed construction of the petitioners at an unsound distance at that time. However, the respondents have clarified that Inspection Division is meant for according clearance to the new Grid Sub Stations and transmission lines after their completion by their respective divisions. They have no role in identifying the site/route for construction of any new project. The petitioners were aware about the construction of said transmission line but they deliberately did not apply for no objection from the relevant authority i.e. Executive Engineer Transmission Line Construction Division-II, Bemina. In the reply it is further qualified that the tower location No. 50-A which falls in the land of the petitioners, will in no way interfere or damage the property of the petitioners. In the reply it is further qualified that the tower location No. 50-A which falls in the land of the petitioners, will in no way interfere or damage the property of the petitioners. The route of the transmission line has been adopted/identified strictly as per the profile approved by the competent authority after keeping in view all the technical aspects. Any type of change or re-alignment in the route of the transmission line at this stage when foundation on both ends i.e. 49-C and 51-A have already been laid, is impossible. The deviations in the already approved route profile of the prestigious centrally sponsored scheme have neither been entertained by the department nor being accepted during the course of execution as the same is beyond the competence of the respondents. The request of the petitioners for shifting the tower position of the subject location No. 50-A out of their land is not genuine/justified. The transmission line is being laid exclusively for the public purpose. 6. Contention of the petitioners that without their consent respondent-authorities are not competent to lay the transmission line over their land or structures in view of the wording employed in Section 11(2) of the Electricity Act is irrelevant because the project is for the public good. Section 11(2) of the said Act providing for consent by itself carves out an exception in case project is dedicated for public good. 7. The main plank of argument of the learned counsel for the petitioners is that it is after due permission granted by the appropriate authority, the petitioners have raised the construction. The Executive Engineer Electric Inspection Division, Srinagar, had conveyed no objection, therefore, respondents cannot backtrack. This contention looses relevance because Executive Engineer Electric Inspection Division, Srinagar, has conveyed that no power line is passing over or adjacent to the proposed construction which position has been clarified by the respondents in the reply by stating that the said Division is meant for according clearance for new Grid Sub Stations after their completion by the respective divisions. The role of identifying site for construction of new project is the domain of respondents, more particularly respondent No. 3 (Executive Engineer, Transmission Line Construction Division-II, Bemina Srinagar) from whom no objection has been obtained when the same was imperative in view of the fact that the petitioners were aware about laying of 220 KV transmission line. 8. The role of identifying site for construction of new project is the domain of respondents, more particularly respondent No. 3 (Executive Engineer, Transmission Line Construction Division-II, Bemina Srinagar) from whom no objection has been obtained when the same was imperative in view of the fact that the petitioners were aware about laying of 220 KV transmission line. 8. Main thrust of learned counsel for the petitioners that in terms of Section 11(2) of the Electricity Act, 1997, which was applicable at the relevant time which by now is replaced by the Electricity Act of 2010, without consent of petitioners, the decision of respondent-authorities in laying the transmission line is bad. In support of this submission has placed reliance on the judgment rendered by the Division Bench of Patna High Court in the case of Power Grid Corporation of India v. Ram Prakash Singh and others, AIR 2011 Patna 83. 9. The said judgment, with respects, is not applicable to the facts of the present case as in the reported judgment facts were different, more particularly there was noncompliance of sub-rules 1, 2 and 3 of Rule 3 of the Works of License Rules, 2006 as applicable in the State of Patna and in view of non-compliance thereof, the decision for laying transmission line without the consent of owners was held to be bad. Section 11(2) of the Electricity Act, 1997 itself carves out an exception. For facility of reference, Section 11(2) is quoted here-under: "11(2). Section 11(2) of the Electricity Act, 1997 itself carves out an exception. For facility of reference, Section 11(2) is quoted here-under: "11(2). Nothing contained in sub-section (1) shall be deemed to authorize or empower a licensee, without the consent of the local authority or of the owner and occupier concerned, as the case may be, to lay down or place any electric supply line or other in, through or against any building, or on, over or under any land not dedicated to public use, whereon, wherever or where-under any electric supply-line or work has not already been lawfully laid down or placed by such licensee; Provided that any support of an aerial line or any stay or strut required for the sole purpose of securing in position any support of an aerial line may be fixed on any building or land or, having been so fixed, may be altered, notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate by order in writing so directs; Provided also that, if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows a sufficient cause, the District Magistrate may be order in writing direct any such support, stay or strut to be removed or altered." The plain wording of sub-section (2) suggests that the consent is required to lay down or place any electric supply line through or other in, through or against any building or on over or under any land not dedicated to public use. Here the case is quite clear. A dream project with a laudable object of supplying light to the general masses, in effect, is dedicated to public use. When it is so, then the question of consent pales into insignificance, same is not required. The Legislature in its wisdom has employed the words "dedicated to public use" with an object and logic i.e. "public interest is superior to the individual interest" so the former has to be preferred. The Electricity Act, 2010 which has repealed the Act of 1997 also does not provide for any such consent when the project is dedicated to public use. 10. Can at this stage, on the objection of the petitioners, the object of dream project allowed to be defeated. The Electricity Act, 2010 which has repealed the Act of 1997 also does not provide for any such consent when the project is dedicated to public use. 10. Can at this stage, on the objection of the petitioners, the object of dream project allowed to be defeated. Answer has to be No. More particularly when it has been made clear that in Zainakote-Alsteng section of the said transmission line out of 158 tower foundations, 140 have already been laid and then in a situation where foundation of tower location No. 49-C and 51-A has already been laid, a tower location in between i.e. No. 50-A, falling in the land of the petitioners, cannot be shifted. The respondent-authorities have made it clear that deviations in the already approved route profile on the prestigious centrally sponsored scheme have neither been entertained nor acceptable during the course of execution as the same is beyond the competence of the respondents. Any type of change or re-alignment in the route of transmission line at this stage when the tower foundations on both ends Viz. 49-C and 51-A have already been laid, is impossible. 11. There is no rebuttal to the averments as made by the respondents in their objections to the effect that tower location No. 50-A falls in the land of the petitioner but same in any manner will not interfere or cause damage to the property of the petitioners. All that respondents are required to do is to ascertain that if any damage will be caused to the property of the petitioners by tower location No. 50-A, petitioners shall be paid appropriate compensation as permissible under Section 18 of the Electricity Act, 1997 and in accordance with the scheme of the Act governing payment of compensation. Viewed thus, petition has no merit, as such, dismissed.