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2016 DIGILAW 2068 (GUJ)

Seth Mafatlal Charity Trust v. Union of India

2016-09-27

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2016
ORDER : VIPUL M. PANCHOLI, J. 1. This appeal is filed under Clause 15 of the Letters Patent challenging the interim order dated 23.08.2016 passed by the learned single Judge in Special Civil Application No. 8821 of 2016 whereby, the learned single Judge issued the following directions in Para-18 of the impugned order: “18. The only aspect with regard to the difference in the cost can be considered by directing the CMD of respondent No. 3 Corporation to decide about the aspect of cost for variation in the line if he is a technical person. If there is no such technical person, then, it may be referred to the Chief Engineer of any of the State controlled electricity company like DGVCL to examine the technical aspects with necessary details for the purpose of determination of the cost suggested by the respondents and may give the opinion and further direction could be issued in the matter. The petitioner shall also file an undertaking while depositing the amount of Rs.75 lakhs that it would abide by any decision which may be given after considering all the technical aspects with regard to any further cost which the petitioner may be required to deposit. It is made clear that if the petitioner fails to deposit the amount of Rs.75 lakhs within a period of two weeks with the undertaking as stated above, the respondents shall be at liberty to proceed further as per the original route without variation. In fact, the suggestion of the petitioner is accepted for variation as and by way of indulgence to preserve the utility value of the land. The matter is adjourned to 8.9.2016.” 2. The appellant herein, original petitioner, is a Public Charitable Trust and the owner and occupier of the agricultural lands bearing Survey Nos. 408 to 475, 410/2 and 462 paiki 2 situated at Mouje Village Nanodara, Taluka Bavla, District Ahmedabad. The respondent no. 3 herein, Gujarat Energy Transmission Corporation Ltd., is a Company registered under the provisions of the Companies Act, 1956 and is entrusted with the work of building, operating and maintaining Power Transmission Systems. 3. In exercise of powers u/s.164 of the Electricity Act, 2003, the respondent no. 3 initiated process for laying down of High Tension electricity lines, which was to pass through the agricultural field belonging to the appellant-Trust. The appellant, therefore, submitted an application/representation dated 23.12.2014 before the respondent no. 3. In exercise of powers u/s.164 of the Electricity Act, 2003, the respondent no. 3 initiated process for laying down of High Tension electricity lines, which was to pass through the agricultural field belonging to the appellant-Trust. The appellant, therefore, submitted an application/representation dated 23.12.2014 before the respondent no. 3-Company requesting to reroute the alignment, by laying down the proposed High Tension electricity lines from the boundary of their agricultural field. Vide letter dated 16.01.2015, the respondent no. 3-Company prepared the estimate for rerouting/shifting the electricity line from the middle of the agricultural land to the boundary of the field, which arrived at Rs.1,49,89,628/-. 4. Pursuant to the application/representation submitted by the appellant-Trust, the District Collector, Ahmedabad, vide order dated 15.07.2015, granted permission to respondent no. 3-Company to lay down the electricity line in a manner causing minimum damage to the appellant-Trust. Thereafter, the appellant-Trust submitted application dated 19.08.2015 before the District Collector, Ahmedabad seeking cancellation of the order wherein, the cost for rerouting work was provided and sought direction to commence work, as per the rerouting plan submitted by it. The District Collector, Ahmedabad rejected the application of the appellant-Trust and maintained its earlier order, vide order dated 07.04.2016 Thereafter, they - respondent no. 3-Company by communication dated 21.09.2015 addressed to the appellant-Trust raised the demand of Rs.1,31,77,635/- towards the estimated cost for rerouting the electricity line. 5. The District Collector, Ahmedabad rejected the application of the appellant-Trust and maintained its earlier order, vide order dated 07.04.2016 Thereafter, they - respondent no. 3-Company by communication dated 21.09.2015 addressed to the appellant-Trust raised the demand of Rs.1,31,77,635/- towards the estimated cost for rerouting the electricity line. 5. Being aggrieved by the said order, the appellant-Trust preferred Special Civil Application No. 8821 of 2016 before the learned single Judge with the following prayers: “(A) Your Lordship may be pleased to issue writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus and be further pleased to direct the respondent-GETCO to reroute of the subjected high tension electricity line from the boundary of the agricultural field of the petitioner, without insisting for deposit of impugned estimated cost; and (B) Your Lordship may be pleased to restrain the respondent-GETCO from laying down the subjected high tension electricity-line from the existing route i.e. from middle of said agricultural field of the petitioner during the pendency and final disposal of this petition; and (C) Your Lordship may be pleased to grant ad-interim relief in terms of above sub-para (B); (D) Your Lordship may be pleased to pass such other and further orders may be deemed just and proper in the facts and circumstances of the present case.” 6. After hearing both the sides, the learned single Judge passed the impugned interim order dated 23.08.2016, which has led to the filing of present Letters Patent Appeal. 7. Learned counsel Mr. Sunit Shah appearing with Mr. N.V. Gandhi for the appellant, original petitioner, submitted that the learned single Judge ought not to have left the aspect of determination of cost for rerouting work upon the discretion of respondent no. 3-Company, which is a party-respondent in the matter. It is submitted that the grant of such discretion would allow respondent no. 3-Company to quote an inflated price. It was contended that respondent no. 3-Company or its officers would not determine the actual cost towards alteration of the line in an independent and impartial manner. Therefore, in the fitness of things, it would have been appropriate if the issue of assessing the cost is decided by an independent agency or through arbitration process. It was, therefore, submitted that the impugned direction issued by the learned single Judge is erroneous and deserves to be modified appropriately. 7.1 Learned counsel Mr. Therefore, in the fitness of things, it would have been appropriate if the issue of assessing the cost is decided by an independent agency or through arbitration process. It was, therefore, submitted that the impugned direction issued by the learned single Judge is erroneous and deserves to be modified appropriately. 7.1 Learned counsel Mr. Shah further submitted that the learned single Judge also erred in directing the appellant-Trust to file an Undertaking to the effect that it would abide by all such conditions that shall be imposed by respondent no. 3-Company for completing the work of rerouting. It was submitted that such direction of the learned single Judge is unsustainable on two counts, firstly, that the cost of rerouting will be determined by the officers of respondent no. 3-Company and secondly, that it closes the right of the appellant to challenge the cost estimate, if, ultimately, the cost quoted is unreasonable or exorbitant. It is contended that the direction to file such Undertaking would grant blanket power to respondent no. 3-Company to acquire huge amount from the appellant by way of cost. If the appellant files such Undertaking, it shall not be left with any other remedy but, to abide by the Undertaking, even if the cost is excruciating. It was, therefore, submitted that the right of the appellant to file appeal may not be taken away by binding the appellant of its Undertaking. 7.2 In support of the above submission, learned counsel Mr. Shah placed reliance upon the judgment of Apex Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry reported in AIR 1957 SC 540 wherein, the following observations have been made in Para-23 of the judgment: “23. From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.” 7.3 Reliance was also placed on another judgment of Apex Court in the case of South Asia Industries Private Ltd. v. S.B. Sarup Singh, reported in AIR 1965 SC 1442 wherein also, the Court has discussed the legal position about the right of appeal. 7.4 Learned counsel Mr. Shah also placed reliance upon the decision of Apex Court in the case of Dayaram v. Sudhir Batham, reported in (2012) 1 SCC 333 wherein also the legal position regarding the right to appeal has been discussed. 8. Lastly, learned counsel Mr. Shah submitted that the time limit of two weeks granted by the learned single Judge to deposit the amount of Rs.75 Lacs is highly unreasonable. It was submitted that the appellant is a Public Charitable Trust carrying on agricultural activities for charitable purposes. It would be difficult for the appellant-Trust to deposit such huge amount within a short period. Therefore, the time limit granted by the learned single Judge may be extended for a further period of at least three months. 9. Mr. S.P. Hasurkar, learned counsel appearing for respondent no. 3-Corporation, submitted that before the learned single Judge, the learned counsel appearing on behalf of the appellant-Trust had conceded that the appellant is ready and willing to bear the additional cost towards rerouting of the electricity line. 9. Mr. S.P. Hasurkar, learned counsel appearing for respondent no. 3-Corporation, submitted that before the learned single Judge, the learned counsel appearing on behalf of the appellant-Trust had conceded that the appellant is ready and willing to bear the additional cost towards rerouting of the electricity line. It was submitted that modification in the line or route is by way of indulgence and that the appellant cannot dispute the aspect of cost assessment since it is a technical thing to be considered on the basis of details, specifications, suitability, etc. to be assessed by the officers of respondent no. 3-Company. 9.1 It was further submitted by learned counsel Mr. Hasurkar that the Budget for installation of electricity line has already been passed and Notification has also been issued in that regard. Therefore, if any additional cost is to be incurred towards rerouting, the respondent no. 3-Company would not be in a position to absorb it and the project would come to a standstill. Therefore, the appellant has to incur the additional expenditure. It is contended that having conceded before the learned single Judge, it does not lie in the mouth of the appellant to say that the work of assessment of cost be assigned to any independent agency. The appellant is preemptive in assuming that an excruciating assessment shall be done by the officer of respondent no. 3-Company. It was submitted that the Chairman/Managing Director (CMD) of respondent no. 3-Company or any such Officer is a technically qualified individual having vast experience in the field of transmission of electricity. Therefore, to presume that the officer would act in an arbitrary or biased manner, is deplorable and uncalled for. 9.2 Learned counsel Mr. Hasurkar further submitted that the project is running late by more than one year from its scheduled time on account of the present litigation. Considering the urgency and the public money involved, the learned single Judge issued the directions in the impugned order, which are just, legal and appropriate. Hence, this Court may not entertain the present appeal. 10. We have heard learned counsel for both the sides and perused the material on record. There is no dispute about the fact that respondent no. 3-Company is empowered by statute to erect electricity line over the land belonging to the appellant. Hence, this Court may not entertain the present appeal. 10. We have heard learned counsel for both the sides and perused the material on record. There is no dispute about the fact that respondent no. 3-Company is empowered by statute to erect electricity line over the land belonging to the appellant. The main objection raised by the appellant-Trust is that 400 KV Line is passing right through the agricultural field of the appellant, which would reduce the overall utility of the land. On the application filed by the appellant seeking rerouting of the electricity line, the District Collector passed the order dated 15.07.2015 emphasizing the fact that the electric line be installed in such manner that it shall cause minimum damage to the appellant. 11. It appears that the appellant had proposed an alternate route for laying down of the electricity line, which would pass near the boundary of the land. In the impugned order, the learned single Judge has recorded the willingness showed by the appellant to deposit such additional cost, that shall be incurred for installing the alternate route. After some negotiations, the appellant agreed to bear the additional cost and on that assurance, the respondent no. 3-Company granted approval to reroute the electricity line. As per the terms of approval, the appellant has to deposit the total estimated cost of Rs.1,31,77,635.46 within a period of one month. Before the learned single Judge, the appellant had also showed its willingness to initially deposit a sum of Rs.50 Lacs and also undertook to deposit the additional cost that may be incurred for alteration of the route. However, the appellant found the Estimate provided by respondent no. 3-Company to be exorbitant and thereby, requested to reduce it appropriately. 12. The appellant apprehended that the Estimate provided by respondent no. 3-Company is a method devised by respondent no. 3-Company to arm-twist the appellant for parting with extra amount. In our opinion, nothing mala-fide has been pointed out so as to even remotely conclude that the appellant is being arm-twisted to part with the amount quoted in the Estimate. Respondent no. 3 is a State transmission utility engaged in the field of supply of Electricity. It is a matter of fact that respondent no. 3-Company never demanded the amount in question on its own. Respondent no. 3 is a State transmission utility engaged in the field of supply of Electricity. It is a matter of fact that respondent no. 3-Company never demanded the amount in question on its own. It was on account of the request made by the appellant for rerouting the line that the Company carried out the assessment work and quoted the Estimate. 13. Having made such request, it does not lie in the mouth of the appellant to say that the Estimate provided is exorbitant. The respondent no. 3-Company could have proceeded with the erection of electricity line as per its original plan. However, it was on account of the request made by the appellant that respondent no. 3-Company had quoted the Estimate. Therefore, the said action of respondent no. 3-Company does not smell of any mala-fide or ill-intention warranting interference of this Court. The learned single Judge has directed the Chairman/Managing Director (C.M.D.) of respondent no. 3-Company to decide the aspect of cost for variation in the line. The C.M.D. is the highest authority of respondent no. 3-Company and is technically qualified for doing such work. It is not proper on the part of the appellant-Trust to cast any aspersions on the conduct of the Officer before he makes any assessment on the subject matter. Further, the learned single Judge has also observed that if no technical person is available in respondent no. 3-Company, the matter be referred to the Chief Engineer of any of the State controlled Electricity Company to determine the issue. Considering the facts of the case, we do not find any illegality or infirmity with the above directions issued by the learned single Judge. 14. Insofar as the contention regarding right to appeal is concerned, it is to be noted that the appellant has not disputed the authority/power of respondent no. 3-Company to lay down electricity lines over the land in question. It was the appellant-Trust which had requested respondent no. 3-Company to reroute the electricity line and had also consented that additional cost of rerouting shall be borne by it. When such request was accepted and respondent no. 3-Company submitted the Estimate, the appellant cannot say that it would lose its right of appeal if it undertakes to abide by the Undertaking. 3-Company to reroute the electricity line and had also consented that additional cost of rerouting shall be borne by it. When such request was accepted and respondent no. 3-Company submitted the Estimate, the appellant cannot say that it would lose its right of appeal if it undertakes to abide by the Undertaking. 14.1 It is pertinent to note that the appellant has been asked to furnish an Undertaking only with respect to the additional cost that it shall have to bear for rerouting the line. In our opinion, the direction to file such an Undertaking is not unreasonable since the issue of additional cost, which the appellant has to pay, is to be decided by the C.M.D./Chief Engineer of any State controlled Electricity Company, as the case may be, after carrying out necessary technical inspections. Once the appellant pays the additional cost, over and above Rs.75.00 Lacs, it will be absolved of the Undertaking. It is not that the appellant has been asked to sign an Undertaking, which relates to some unpredictable cost that may arise in future on account of rerouting work. If no such Undertaking is taken and if after commencement of the work, the appellant backs out of its request for any reason, then respondent no. 3-Company will be saddled with the liability to bear the additional expenditure. 14.2 Under the circumstances, we do not find any substance in the submission made by learned counsel for the appellant that it would lose its right to appeal, having signed the Undertaking. Considering the above aspects, none of the decisions relied upon by learned counsel for the appellant shall be of any help to the appellant in the facts and circumstances of the present case. 15. Insofar as the last contention regarding the time limit granted by the learned single Judge for depositing the initial amount of Rs.75.00 Lacs is concerned, it| be noted that the project for installation of the electricity line in question is already delayed by more than one year from its scheduled time. Considering the urgency, the learned single Judge granted the period of two weeks to make the initial deposit, which has been extended from time to time, on account of the pendency of present litigation. Considering the urgency, the learned single Judge granted the period of two weeks to make the initial deposit, which has been extended from time to time, on account of the pendency of present litigation. 15.1 In our opinion, looking to the nature of project and when the appellant has consented before the learned single Judge to bear the entire cost of rerouting, it would not be proper on the part of the appellant to say that the period granted by the learned single Judge is unreasonable. In the facts and circumstances of the case, the said period is extended by a further period of two weeks from today. 16. In view of the above discussion, we are of the opinion that the learned single Judge has not committed any error while passing the interim order. We are in complete agreement with the reasonings given by the learned single Judge and hence, find no reasons to entertain this appeal. Consequently, the appeal is dismissed. The writ petition be listed before the learned single Judge on 13.10.2016