Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 198 (ORI)

Manoranjan Sa v. State of Odisha

2019-03-08

P.PATNAIK, S.PANDA

body2019
JUDGMENT : S. Panda, J. The petitioners, who are the villagers of Sarandamal and Junadihi, in the district of Jharsuguda pray for quashing the order dated 06.04.2016 passed by the Government of Odisha in Revenue & Disaster Management Department under Annexure-4 as well as the order dated 08.04.2016 passed by the Collector & District Magistrate, Jharsuguda under Annexure-5 to the writ petition, wherein M/s National Thermal Power Corporation Limited ('NTPC' in short), Darlipali, S.T.P.P. was permitted to exercise the powers for right of way/right of use of private property as per the land schedule submitted by the GGM, M/s NTPC, Darlipali for laying overhead electric lines and underground water pipelines in the lands of the petitioners. 2. The brief fact as delineated in this writ petition tends to reveal as follows: The petitioners claiming to be the marginal farmers are residing in the village Sarandmal and Junadihi under Lakhanpur Tahasil in the district of Jharsuguda. The lands are recorded in the name of the predecessors of the petitioners and the same are the only resource of their livelihood. They are engaged in cultivation. The Land Acquisition Officer-opposite party no.4 issued a general notice in the year 2016 informing the villagers to attend a meeting in the office of the Collector to discuss about the proposed laying of pipeline and electric line by NTPC. Thereafter no notice was issued to the petitioners. However, in the month of December, 2018 the authorities of District Administration as well as the officials of NTPC along with others made a site visit and the petitioners came to know that NTPC is going to lay underground water pipeline as well as 132 Kv overhead electric transmission lines in the lands of the petitioners. On enquiry the petitioners could come to know that NTPC for its commercial requirement is setting up a 1600 MW Thermal power plant at Darlipali village of Lephripara Tahasil in the district of Sundergarh and for such project it intends to draw water from Hirakud Reservoir through underground pipeline. NTPC further intends to construct two numbers of 132 Kv transmission lines along with the said water pipeline corridor. 3. NTPC further intends to construct two numbers of 132 Kv transmission lines along with the said water pipeline corridor. 3. According to learned counsel for the petitioners, the Principal Secretary to Government of Odisha in Revenue and Disaster Management Department vide its letter dated 06.04.2016 has authorized the Collector to issue appropriate orders under section 16 (1) of the Indian Telegraph Act, 1885 read with section 164 of The Electricity Act, 2003 for acquisition of right of user in respect of the private property with proper compensation and subject to certain conditions. Thereafter the Collector, without any notice to the petitioners/ land losers or without any payment of compensation vide letter dated 08.04.2016 allowed NTPC to undertake the project implementation over the land belonging to the petitioners. According to them, the Collector in the said order conferred the authority of NTPC to exercise all power that of Telegraph Authority by purported exercise of the power under section 164 of the Electricity Act, 2003. 4. The main grounds of challenge of the petitioners is as follows:- (a) Though the Government and the Collector have issued directions for payment of compensation before commencement of work, the same has not been complied with. The provisions of Right to Fair Compensation & Transparency in Land Acquisition Act, 2013 ought to have been followed including the social impact assessment and rehabilitation and resettlement, before their lands are taken for the said purposes. (b) The NTPC being neither a distribution licensee nor a transmission licensee under section 14 of the Electricity Act, 2003 do not possess any authority and jurisdiction under Section 67 of the Act to lay overhead electric lines over the private lands without their consent. (c) There being no notification as provided under section 164 of the Electricity Act, 2003 issued by the appropriate Government conferring power of Telegraph Authority on NTPC, so as to lay electric lines over the lands of the petitioner, the NTPC has no authority to lay such electric lines over the lands of the petitioners. According to him, for the Central Government owned generating companies like NTPC, the Central Government is the Appropriate Government and in this case, the Central Government has not issued any notification conferring the powers of Telegraph Authority on NTCP. According to him, for the Central Government owned generating companies like NTPC, the Central Government is the Appropriate Government and in this case, the Central Government has not issued any notification conferring the powers of Telegraph Authority on NTCP. Therefore, the State Government has no authority to declare and confer the power of "Telegraph Authority" on NTPC under section 164 of the Electricity Act. (d) Therefore, according to him, once the State Government has delegated the power to the Collector as the "Telegraph Authority", the NTPC has no authority to exercise the power under the Act to draw lines over and under the private lands of the petitioners. According to him, such action of the opposite parties are illegal, arbitrary and without jurisdiction and power, for which, the same needs the interference of this Court. 5. A counter affidavit has been filed on behalf of the opposite parties 2 and 3- the State authorities, indicting therein that in exercise of power conferred under Section 164 of the Electricity Act, 2003, the State Government conferred upon NTPC, the supplier of electricity, to exercise all powers vested in the Telegraph Authority under Part-III of the Indian Telegraph Act, 1885 in respect of the electric lines and electrical plants established or maintained or to be established or maintained for the purpose of Telephonic and Telegraphic Communication necessary for proper coordination of the aforementioned work subject to the following conditions stipulated in the order. It has also been indicated that the NTPC has deposited the compensation amount measuring an area of Ac.198.718 acres for disbursement to the land owners by the LAO, Jharsuguda, out of which measuring an area of Ac.123 has already been disbursed. The Collector, Jharsuguda in its order dated 08.04.2016 has clarified that for the right of use permission on private land, there is no change in right, title and interest of the petitioners over the said lands. The corporation and its agency have only temporary right to use the land. After laying of the underground pipeline, the land shall be leveled and restored as good as before by the Corporation and possession of land shall be handed over to the owner or occupier of the land by the competent authority. The owner or occupier, after restoration of possession, shall be entitled to use the land for the purpose for which such land was put to use. The owner or occupier, after restoration of possession, shall be entitled to use the land for the purpose for which such land was put to use. It has also been indicated that the Principal Secretary to Government has authorized the Collector, Jarsuguda to issue appropriate order under section 16 (1) of The Indian Telegraph Act, 1885 read with Section 164 of the Electricity Act, 2003. NTPC, Darlipali is Nation Building Project to cater power requirement of eastern part of India, therefore, permission was extended to NTPC to execute the work of pipeline and transmission line. The villagers had represented the Collector, Jharsuguda demanding 100% land value of the tower base area and accordingly the Collector vide order dated 27.05.2017 has directed that the villagers are to receive 100% compensation for Tower base area. Hence, according to the state-opposite parties, the impugned orders is for the benefit of the persons whose land is going to be utilized for the aforesaid purpose and they will get the compensation. Thus, the same need not be interfered with. 6. The stand of the NTPC is identical to that of the state-opposite parties. According to them, the NTPC is a Government Company dealing with generation of electricity and allied activities. It was entrusted to set up a 2x800 MW Super Thermal Power Project at village Darlipalli in the district of Sundergarh for the public purpose and especially beneficial to the State of Odisha (50% power is allocated for Orissa) to meet the electricity requirement of Eastern Region of India, including states like Odisha, West Bengal, Jharkhand. Apart from Coal, water is the major critical requirement for setting up the Thermal Power Plant and for generation of electricity. The Company is in possession of all requisite approvals, permissions, NOCs sanctioned by various authorities. The project is being set up as per the joint decision arrived at between Government of India and Government of Odisha. The total area of 2005 acres allotted to the company includes 1441 acres of private land and 570 acres of government land. Almost 95% of the project construction work has already been completed. The laying of water pipe line is being done at one and a half meter depth of the ground surface and the surface land would be available for utilization of the respective land owners. Almost 95% of the project construction work has already been completed. The laying of water pipe line is being done at one and a half meter depth of the ground surface and the surface land would be available for utilization of the respective land owners. The State Government has authorized the Collector, Jharsuguda to issue appropriate order under Section 16 (1) of the Indian Telegraph Act, 1885, read with Section 164 of the Electricity Act, 2003 for acquisition of right of user in respect of private property with proper compensation and subject to certain conditions. So far as payment of compensation is concerned, their stand was that entire compensation amount for 198 acres of private land has already been deposited with the authority. 7. After going through the contentions raised by various parties, it is pertinent to quote Section 164 of the Electricity Act, 2003 and Sections, 10 & 16 (1) of the Indian Telegraph Act, 1885. Section 164 of the Electricity Act, 2003:- 164. Exercise of powers of Telegraph Authority in certain cases:- The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper coordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restriction, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885 (13 of 1885) any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained. This clause provides for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephone or telegraphic communications and confer upon any public officer, licensee or any other person engaged in the business of supplying of electricity under the proposed legislation, any of the powers of the Telegraph Authority (Notes on Clauses) Relevant provisions of Section-10 and 16 (1) of the Indian Telegraph Act, 1885:- 10. Power for telegraph authority to place and maintain telegraph lines and posts:- The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property: Provided that- xxx xxx xxx 16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority- (1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. 8. The Electricity Act, 2003 came subsequent to the Indian Telegraph Act, 1885. While the Electricity Act was enacted, they have referred to the Indian Telegraph Act, 1885 in Section 164 of the Electricity Act, 2003, wherein it was specifically stipulated that the Indian Telegraph Act, 1885 will be made applicable for the purpose of implementing the Government orders for placing electrical lines or electrical plants for transmission of the electricity for public interest. A reading of the said provision, it is crystal clear that in respect of a scheme, the mode of implementation is by following the mandates of Section 164 of the Electricity Act, 2003 read with Sections10 & 16 of the Indian Telegraph Act, 1885. Section 16 of the Indian Telegraph Act, 1885 provides the mechanism of compensation and the petitioners can have no grievance on that. 9. Section 10 of the Indian Telegraph Act clearly stipulates that the Telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property. Section 10 of the Indian Telegraph Act, 1885 gives power to enter upon and there is no restrain except complying Section 16 of the said Act. Such power under Section 10 is exercised in public interest. The intention of the legislature is very clear and there is no ambiguity in it. Such provision still holds the field since 1885 i.e. nearly 135 years and exercise of such power under this Act would not amount to an acquisition, even if that is the intention of the legislature. However Section 16 of the Indian Telegraph Act, 1885 provides the mechanism of compensation. Such provision still holds the field since 1885 i.e. nearly 135 years and exercise of such power under this Act would not amount to an acquisition, even if that is the intention of the legislature. However Section 16 of the Indian Telegraph Act, 1885 provides the mechanism of compensation. As submitted by the learned counsel for the State, the State Government has already decided to give adequate compensation as required under the law. 10. The State Government having jurisdiction under the Electricity Act, 2003 by order in writing for placing the electric line or electrical plant for the purpose of transmission of electricity, which are necessary for the proper coordination of the work conferred upon any other person engaged in the said work for supplying electricity as stipulated under Section 164 of the 2003 Act, authorized the concerned Collector to issue appropriate orders under Section 16(1) of the Indian Telegraph Act, 1885 read with Section 164 of the Electricity Act, 2003 for acquisition of right of user in respect of the private property with proper compensation and subject to certain conditions. Thus, the same is in accordance with the statutory provisions. 11. Power under Section 10 of the Indian Telegraph Act, 1885 is absolute. In case where there is resistance or obstruction in the exercise of that power, the occasion to approach the District Magistrate arises as provided under Section 16(1) of the Act for compensation. While enacting the Electricity Act, 2003, the legislature has also taken the object behind the Indian Telegraph Act and incorporated such mandate under Section 164 of the Electricity Act, 2003. Sub-Section-5 of Section-2 of the Electricity Act, 2003 provides "Appropriate Government", which means (a) The Central Government,- xxx xxx xxx (b) In any other case, the State Government having jurisdiction under this Act. Thus, the State Governing being the appropriate government has taken step and conferred permission to the company to carry out the work for the public interest. 12. Sub-Section-5 of Section-2 of the Electricity Act, 2003 provides "Appropriate Government", which means (a) The Central Government,- xxx xxx xxx (b) In any other case, the State Government having jurisdiction under this Act. Thus, the State Governing being the appropriate government has taken step and conferred permission to the company to carry out the work for the public interest. 12. The Apex Court in the case of M.D.,M/s.Ramkrishna Poultry P. Ltd., vs. R.Chellappan & Ors, (2009) 16 SCC 743 observed that the provisions of Section 164 of the Electricity Act, 2003 empowers the appropriate Government to confer on any authority or person engaged in the business of supplying electricity under the Act, any of the powers which the Telegraph Authority possesses under the Telegraph Act with respect to the placing of telephonic lines or posts. 13. In view of such power conferred under Section 10 of the Indian Telegraph Act, the authority while putting on the electric line or water line, can carryout such action as stipulated under Section 10 of the Indian Telegraph Act. The persons if aggrieved for such action may take recourses to Section 16 of the Indian Telegraph Act for higher compensation. On perusal of the impugned order dated 06.04.2016, it is revealed that the State Government authorized the concerned Collectors to issue appropriate orders under Section 16 (1) of the Indian Telegraph Act, 1885 read with Section 164 of the Electricity Act, 2003. Since the power was vested to the Collector under Section 16 (1) of the Indian Telegraph Act, read with Section 164 of the Electricity Act, 2003, it has permitted NTPC the power of right of way/right of use of private property, the same cannot be treated as redelegation of power of "Telegraph Authority" on NTPC. Similarly as it reveals from the counter that out of Ac.198.718, compensation has already been disbursed for an area of Ac.123.00. 14. With regard to consent of the land owners before laying any overhead electric lines or underground water pipelines, it has been settled in the case of Jayantkumar Bhagubhai Patel and another v. State of Gujrat and another, (2007) AIR Gujarat 32 that such consent is not necessary since no damage of permanent nature would be caused and the land could be used for the agricultural purpose. In case of Soma Oram v. Chairman Steel Authority of India Ltd, New Delhi, (2001) 1 OrissaLR 663 this Court has held that the land owner is entitled to get compensation in accordance with the provisions contained in the Indian Telegraph Act and if the quantum of compensation fixed by the Collector is not satisfactory, it is open to the parties to approach the appropriate forum. 15. In view of the discussions made hereinabove paragraphs and the law settled in different judicial pronouncements as indicated above, the questions raised by the petitioners are answered. Accordingly, this Court is not inclined to interfere with the impugned orders dated 06.04.2016 as well as 08.04.2016 in exercise of the jurisdiction conferred under Articles 226 and 227 of the Constitution of India. The Writ Petition is accordingly dismissed.