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2023 DIGILAW 416 (ALL)

Arun Kumar v. State of U. P.

2023-02-10

MANISH KUMAR, SANGEETA CHANDRA

body2023
JUDGMENT Heard learned counsel for the petitioner, Sri Prashant Singh Atal, who has put in appearance on behalf of P.G.C.I.L. and Sri Rakesh Tiwari, learned Additional Chief Standing Counsel for the State-respondents. 2. This petition has been filed with following main prayers:- "a) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to decide the resistance/objection raised vide letter dated 30.01.2023 preferred by the petitioner under Section 16 of the Act, 1885. b) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 to 6 to not proceed with the installation of electricity lines/towers over the land in question till the adjudication of the objection dated 30.01.2021 preferred before the respondent no.2. c) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 to 6 to comply with the mandatory prerequisite provided in proviso (d) of Section 10 of the Act, 1885. " 3. It is the case of the petitioner that he is a recorded joint tenure holder of plot no.336-ka ad-measuring 9.2580 hectare situated in Village Govindpur, Pargana Nigoha, Tehsil Mohanlalganj, District Lucknow along with his other family members. The District Magistrate, Lucknow is the competent authority empowered to grant permission to telegraph authority for installation of electricity lines / towers etc. under section 16 of the Telegraph Act, 1885 (hereinafter referred to as 'the Act, 1885'), in the event of any resistant or obstructions made by the owner of the property of which, the telegraph authority or lays down electricity lines/towers. The respondent no.3, P.G.C.I.L. is a public sector undertaking of Government of India, respondent. The respondent no.5, Power Grid Yamuna Transmission Ltd. is a folio subsidiary of respondent no.3. 4. The respondent no.5 claims to be telegraph authority under the Act of 1885 and further claims to be empowered under section 4 of the Electricity Act, 2003 read with Section 10 of the Act of 1885. The respondent no.5 has been authorized to construct Mohahlal Ganj Sub Station of 400 K.W. for Sarojani Nagar-Unnao Single Circuit Transmission Line. The petitioner's land is agricultural in nature where he grows crops of wheat and mustard and he has installed several poly houses for various other farming activities. He also raises cattle on the said land. The respondent no.5 has been authorized to construct Mohahlal Ganj Sub Station of 400 K.W. for Sarojani Nagar-Unnao Single Circuit Transmission Line. The petitioner's land is agricultural in nature where he grows crops of wheat and mustard and he has installed several poly houses for various other farming activities. He also raises cattle on the said land. The petitioner received a message from Manager of respondent no.3 that "pit marking" exercise in respect of laying down of Sarojani Nagar- Unnao Single Circuit Transmission Line shall be conducted on the land of the petitioner. After receipt of the message, certain unknown persons reached upon the land of the petitioner and started measuring the same also marking it for digging pits. The petitioner resisted such an exercise. He was informed by the respondents no.5 and 6 that respondent no.5 had being designated as telegraph authority under Part 3 of the Act of 1885 and had an absolute 'right of way' over the land in question. The petitioner was requested not to create obstruction in carrying out the project. The petitioner filed his detailed objections to such authority, he also filed the representation to the District Magistrate, Lucknow. 5. It has been argued by learned counsel for the petitioner that the respondents no.3 to 6 are continuing their actions over the land of the petitioner in complete violation of Section 10 and 16 of the Act of 1885. It has been argued that the petitioner has already approached the District Magistrate by means of representation showing his resistance to the action of respondents no.3 to 6 and since the District Magistrate has not passed any order on the representation/objections of the petitioner, any action taken by the respondents no.3 to 6 is in complete violation of Section 16 and hence should be prohibited by this Court. 6. The learned counsel for the petitioner during the course of argument has placed reliance upon interim orders and judgements rendered by the Division Benches of this Court to say that all such Division Benches have treated representations of land owners to the District Magistrate against laying down of lines by the Telegraph Authority as resistance or obstruction as mentioned under Section 16 sub-Section (1) of the Act of 1885. It has been submitted on the basis of such orders/ judgements that once the petitioner made a representation to the District Magistrate Lucknow against construction of Tower/laying down of Transmission Lines by PGCIL, then the PGCIL could not have proceeded with pit marking exercise for constructing Towers on the land of the petitioner without the permission for the same being granted first by the District Magistrate after hearing the petitioner as well as PGCIL. The Counsel for the petitioner has placed reliance upon the following orders/judgements:- (1) Ram Milan and others v. state of UP and others, Writ Petition No. 18533 (MB) of 2019, Interim orders dated 12.07.2019, 16.07.2019, and final order dated 17.10.2019; (2) Riyasat and others v. State of U.P. and others Writ-C No.6167 of 2013; decided on 20.02.2013, (3) Jagir Lal v. State of UP and others, Writ Petition No. 39173 of 2011, decided on 02.09.2011, 7. When the matter was taken up on earlier occasions, this Court had passed an order directing the Standing Counsel for the State and for the P.G.C.I.L. to seek instructions with regard to the allegations made in the petition with regard to the violation of Section 10(d) and Section 16 of the Act of 1885. 8. Today, the learned counsel appearing on behalf of the State respondents says that the representation of the petitioner was received on 02.02.2023 by the District Magistrate but because of extreme preoccupation with other administrative duties, it could be decided and shall be decided within a period of two weeks by the office of the District Magistrate, Lucknow. 9. Sri Prashant Singh Atal on the basis of instructions says that reliance placed by the petitioner on Section 10(d) and Section 16 of the Act of 1885 is completely misconceived. He has also placed reliance upon the judgement of Hon'ble Supreme Court rendered in The Power Grid Corporation of India Limited v. Century Textiles & Industries Limited and Ors. reported in AIR 2017 SC 1141 . It has been argued on the basis of the judgement rendered by the Supreme Court that once the P.G.C.I.L. has been notified/designated as telegraph authority under the Indian Telegraph Act, 1885, it acquires all such powers which are vested under the telegraph authority under the provision of Act of 1885, including power to eliminate any obstruction in laying down of the power transmission lines. As per the provision of the Act of 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in larger public interest. Electrification of villages all over the country and availability of telegraph lines are most essential requirements for growth and development of any country and the well being / progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through scheme of the Indian Telegraph Act, 1885, the licensee is empowered to lay down telegraph lines as also electricity transmission lines. 10. The section 10 of the Indian Telegraph Act, 1885 has been specifically referred to by the Supreme Court in its judgement. It has been observed that the provision of Section 10(b) of the Act of 1885 makes it abundantly clear that while acquiring power to lay down telegraph lines, the Central Government does not acquire any right other than that of user of the property. Further, Section 10 (d) of the Act of 1885, the telegraph authority has to ensure that it causes as little damage as possible and that the telegraph authority would also be obliged to pay full compensation to all persons interested, for any damage sustained by them by reason of exercise of those powers. The Supreme Court in the said judgement has observed that the telegraph authority carrying out its duty for an avowed public purpose cannot be obstructed in laying down any electricity lines. At the most, the tenure holder of any piece of land over which such telegraph / electricity lines are laid, is entitled to due compensation. 11. This Court shall first consider orders relied upon by the petitioner's Counsel. This Court has carefully gone through orders passed by the Division Bench in Ram Milan and others (supra), where the Bench while entertaining the petition had directed the learned Counsel appearing for Power Transmission Corp. Ltd to seek instructions whether there was any Notification under section 164 of the Electricity Act, 2003, read with section 10 of the Indian Telegraph Act, 1885, which permitted the Corporation to Act as Telegraph Authority and use the land of the petitioner for laying high-powered Transmission Lines. Ltd to seek instructions whether there was any Notification under section 164 of the Electricity Act, 2003, read with section 10 of the Indian Telegraph Act, 1885, which permitted the Corporation to Act as Telegraph Authority and use the land of the petitioner for laying high-powered Transmission Lines. The Court had also granted time to the learned Counsel for the respondents to find out whether any decision had been taken by the District Magistrate under Section 16(1) of the Act of 1885 on the representations made by the petitioners. The Counsel for the Power Corporation had argued that no such permission was required. The Division Bench had observed that the judgement rendered by the Supreme Court in the case of Century Textiles (supra) did not consider Section 16 in its entirety and did not discuss the need for permission in case of resistance by landowners. The Division Bench also considered the argument raised by Counsel for U.P. Power Transmission Corporation that compensation is to be determined in accordance with the Government Order dated 06.09.2018 however, the Court observed that the Government of India, Ministry of Power had issued a Circular on 15.10.2015 addressed to all Chief Secretaries of all the States, regarding compensation to be paid not only in respect of area which is impacted by installation of Transmission Towers and Transmission Lines but also with respect to right of way under the Transmission Lines, which required a huge tracts of land to be left vacant under the Transmission Lines. The Court was of the opinion that the Central Government circular dated 15.10.2015 was more comprehensive, whereas the U.P. Government Circular did not talk about payment of compensation for right of way under the Transmission Line. Not only did Section 67 & 68 of the Act of 2003, but also the Circular of the Government of India, required the Telegraph Authority to cause as little damage to the land over which Transmission Lines were to be laid but also take into account the detriment and inconvenience caused to the land owner and to make full compensation for any damage, detriment or inconvenience caused to him. The Bench observed in its interim order that detriment and inconvenience is caused to the land owner not only by exercise of right of user of a very small area of agricultural plot which is used for erection of Tower for the purpose of Transmission Line but such detriment and inconvenience is also caused in case the licensee exercises the right of way, which is to be exercised for a width of several meters causing detriment to agricultural operations. The Petition was eventually disposed of finally by directing the District Magistrate to consider the representation of the landowners and the cause of the Telegraph Authority and give them a reasonable opportunity of hearing, before deciding the same and to take into account the Circular of the Central Government dated 15.10.2015 as it was much more comprehensive in its consideration of detriment and inconvenience caused to the land owner by erecting of Towers and laying down of Transmission Lines. 12. In Riyasat (supra), another Division Bench of this Court considered the fact that the petitioners had filed a representation to the District Magistrate Hapur and without deciding such representations the respondent Telegraph Authority had proceeded to establish Electricity Poles and to draw high tension wires which was likely to threaten the safety of the families of the petitioner and their Cattle. The Court was of the opinion that the District Magistrate had been empowered to decide such representations and even order an exemption to a land owner, in case he finds it in public interest. The District Magistrate had been directed to pass a reasoned order after giving opportunity of personal hearing to the land owner as well as to the officials of the Telegraph Authority. 13. In Jagir Lal (supra), a Division Bench of this Court was considering the arguments raised by the learned counsel for the petitioners that they had objected to Transmission Lines being drawn over their residential houses. It had been argued that the permission of the District Magistrate ought to have been obtained by the respondents as the petitioners had never consented for laying down of the Lines. It had been argued that the permission of the District Magistrate ought to have been obtained by the respondents as the petitioners had never consented for laying down of the Lines. Reference was made to Full Bench decision of Kerala High Court in Bharat Plywood and Timber Products Private Limited v. Kerala State Electricity Board Trivandrum and others reported in AIR 1972 Kerala 47, and judgement rendered by the Delhi High Court in Surat Singh v. Municipal Corporation of Delhi AIR 1989 Delhi 51, and judgement rendered by the Karnataka High Court in Thirthesh A. S. v. Under Secretary to the Government of Karnataka Department of Power Corporation and others. The Court was of the opinion that there was no requirement for obtaining any consent from the petitioners before laying down of the Transmission Lines. However, once such Transmission Lines were proposed to be laid, and the land owners objected to the same by filing representations to the District Magistrate, it was for the District Magistrate to decide such representations by a reasoned and speaking order, after hearing the parties, and only thereafter the Transmission Lines could be laid down by the Telegraph Authority. If the District Magistrate found it necessary for the Transmission Lines to be laid over the land of the petitioners, then he would direct payment of adequate compensation taking into account damage, if any, caused to such land. The Court considered the provisions of Section 10 and Section 16 of the Act of 1885 and the judgement of Full Bench of the Kerala High Court (supra), wherein it was observed that the words used under Section 16 were "the District Magistrate may in his discretion" which meant that an order allowing Transmission Lines to be laid, would not be forthcoming automatically. The District Magistrate may or may not grant permission to the Authority but it may permit the Authority to lay down the Transmission Lines or to erect towers after taking into account all factors and by exercising his judicial discretion. In case a land owner objects to laying down of such Transmission Line, it shall be treated as resistance and the District Magistrate would have to decide whether the Telegraph Authority should be permitted or not to exercise its powers under section 16 of the Telegraph Act. In case a land owner objects to laying down of such Transmission Line, it shall be treated as resistance and the District Magistrate would have to decide whether the Telegraph Authority should be permitted or not to exercise its powers under section 16 of the Telegraph Act. This necessarily meant that the Telegraph Authority cannot override or ignore the resistance of the landowner and continue to exercise its powers under Section 10, notwithstanding such obstruction. In case of an owner or occupier resistance or obstruction in the exercise of power under Section 10, the Telegraph Authority would have to approach the District Magistrate for an order under sub-Section (1) of Section 16 and can exercise the power under Section 10 only in case where the District Magistrate deems it fit to pass an order that it shall be permitted to do so. The power conferred by Section 10 is, thus, a conditional power; conditional on an order being passed under Section 16 (1) of the District Magistrate. Since under sub-Section (2) of Section 16 penal consequences are provided, if any, person resists the exercise of power under Section 10 who does not give all facilities for their being exercised, even after making of an order under sub-Section (1) of Section 16, requires that first the District Magistrate must pass an order under Section 16 (1) if he is so approached either by the Telegraph Authority or by the landowner concerned. It is only after the District Magistrate decides that the Telegraph Authority should be permitted to lay down the Transmission Line, resistance thereafter becomes an offence. There is an obligation cast upon the owner or occupier to render all facilities for the exercise of power under Section 10 by the Telegraph Authority only after the District Magistrate exercises his powers under Section 16(1) on being approached by either of the parties. If the licensee/Telegraph Authority enters upon the land and the owner or occupier raises objections, the licensee must obtain permission in writing from the District Magistrate before laying down the Transmission Lines. 14. If the licensee/Telegraph Authority enters upon the land and the owner or occupier raises objections, the licensee must obtain permission in writing from the District Magistrate before laying down the Transmission Lines. 14. In Jagir Lal (supra) the Division Bench considered all judgements rendered earlier by Coordinate Division Benches of this Court and came to a conclusion that the landowner on whose land electric line is drawn, is entitled to compensation and there was no specific discussion of Section 16 sub-Section (1), nor any proposition had been laid down in them that even though laying down of line is obstructed, no permission of the District Magistrate is required. The Court was of the opinion that power conferred upon the District Magistrate under Section 16 is to exercise discretion in cases where laying of Transmission Line is obstructed. Such power is to be exercised for a purpose and an object. The object is that whenever a dispute arises between the Telegraph Authority and owner of the property, on whose land Transmission Line is to be laid down, the District Magistrate is to consider the facts of the particular case and then in his discretion, decide as to whether laying of the line should be permitted or not. In the above, it is implicit that in a given case the District Magistrate may permit laying of the line or may refuse to permit the same. The power that has been conferred is with an object that the District Authority may adjudicate and decide any such issue raised on such obstruction or resistance. However, from the provisions of section 10 and 16 of the Telegraph Act and the provisions of the U.P. Electricity Act 2003, it is clear that there is no requirement of obtaining any permission from the owner of the property for laying down the Transmission Lines. The only protection which has been given to the owner is one as contemplated under sub-Section (1) of Section 16, where the District Magistrate has been conferred with the power to take a decision in his discretion as to whether Telegraph Line be permitted to be laid down or not. The District Magistrate can exercise such power either Suo Moto, or on the request made by either the Telegraph Authority or by the owner of the land. The District Magistrate can exercise such power either Suo Moto, or on the request made by either the Telegraph Authority or by the owner of the land. There is no dispute that whenever Telegraph Line is laid down on a property of a person, he is entitled to claim compensation from the authority and in the event he is not satisfied with the amount of compensation, he is entitled to make an application to the District Judge as per section 16 (3) of the Telegraph Act. 15. This Court has carefully gone through the judgement rendered by the Supreme Court in Century Textiles (Supra) and cited by the learned counsel for the respondent and finds that there is a specific reference to Section 16 of the Act of 1885 by the Supreme Court in its para 18 and the Supreme Court has also observed that if any dispute arises concerning sufficiency of compensation to be paid under Section 10 clause (d) an application for the said purpose can be moved by either of the disputing parties to the District Judge within whose jurisdiction the property is situated and the court of District Judge shall direct the telegraph authority to deposit in the court of District Judge such amount as it deems sufficient in case there is a dispute regarding apportionment also. 16. This Court has carefully gone through the Section 10 of the Act of 1885 and also Section 16 of the Act of 1885. Section 10 has been considered by the Supreme Court also in its judgement. This Court finds that the telegraph authority has been given power to lay telegraph lines/electricity lines under, over, along or across, and set up pillars/posts in or upon any immovable property including land. For establishing and maintaining telegraph/electricity lines, the Central Government has been given right of user only over the property under, over, along, across, in or above which the telegraph authority places the telegraph line or post, and it is only with respect to the property under the control or management of a local authority that permission needs to be sought from the local authority concerned prior to laying down of such lines. It has been provided under Section 10(d) that the telegraph authority shall do as little damage as possible while exercising this power in respect of property and shall pay full compensation to all persons interested for any damage sustained by them by reason of exercise of those powers. 17. This Court has also gone through Section 16 of the Act of 1885 which has been referred to by the learned counsel during the course of his argument. Under Section 16 of the Act of 1885, it is provided that while exercising powers conferred by Section 10 or on raising of dispute as to compensation, in case of property other than of the local authority, such exercise is resisted or obstructed, the District Magistrate shall in his discretion, order that the telegraph authority be permitted to exercise such powers. If after making of such order by the District Magistrate, under Sub Section (1), any person still resists the exercise of such power, or having control over the property, does not give all facilities for them to be exercised, he shall be deemed to have committed an offence under Section 188 I.P.C. If any dispute arises concerning the sufficiency of the compensation given under Section 10(d), the District Judge shall decide such dispute including that of apportionment of such compensation. 18. Learned counsel appearing on behalf of the P.G.C.I.L. on the basis of instructions also stated that 110 towers have to be erected for completion of project as aforesaid. Ninety Five towers have been erected and compensation has been provided to all the tenure holders on whose lands such towers have been erected and as per the agreement entered into between the State Government and the respondents no.3 to 6, the line is to be activated by 15.03.2023. The electricity lines are always in a straight line and the alignment is decided as per the D.P.R. prepared by the experts in the field. The land of the petitioner is 25 acres in length and he has in his reply to the request made by the respondents no.5 and 6 stated that his piece of land may be avoided and line may be laid in a manner that it does not cross his land. Such a request is not possible to be acceded to as it would involve shifting the transmission lines in an arbitrary manner. Such a request is not possible to be acceded to as it would involve shifting the transmission lines in an arbitrary manner. It is unfeasible to change the alignment as almost the entire work has already been completed by the time writ petitioner started protesting against the move. 19. Learned counsel for the respondent has referred to para 24 of the judgement in P.G.C.I.L. (Supra), where the Supreme Court has observed as follows:- "We also do not find that the action of the Power Grid, in the given circumstances, by not shifting the transmission lines was arbitrary. From the facts noted above, it becomes apparent that not only it was unfeasible to change the alignment as almost entire work had already been completed by the time the writ petitioner started protesting against this move, even otherwise, the Power Grid has given sufficient explanation to point out that all relevant factors/ aspects were kept in mind while laying down the impugned transmission lines. Such transmission lines had to be in straight line to the extent possible for eliminating loss of transmission. It is also explained that electricity transmission is usually laid or crossed over agricultural land where minimum extent of land gets utilised for erecting towers and where agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds etc. while laying down these transmission lines. It is only when it becomes inevitable that towers are placed on the private lands to the minimum and least extent possible. That is what was tried to achieve in the instant case." 20. Now coming to the facts of the case at hand, it has come out from the arguments raised by the learned counsel the respondents that there were 110 towers that were planned for 400 K.V. Transmission Line for Mohanlalganj substation on Sarojini Nagar - Unnao single circuit Transmission Line. 95 such towers have been constructed on land of various farmers and they have been given suitable compensation also. Only one tower is to be constructed on the land of the petitioner. Such tower along with Transmission Lines running across 25 acres length of petitioners land is in a straight line/alignment with the other towers. 95 such towers have been constructed on land of various farmers and they have been given suitable compensation also. Only one tower is to be constructed on the land of the petitioner. Such tower along with Transmission Lines running across 25 acres length of petitioners land is in a straight line/alignment with the other towers. The petitioner wishes the District Magistrate to intervene and to decide his representation, a copy of which has been filed as annexure to the writ petition, and to change the alignment of the Transmission Lines which would require a complete avoiding of the petitioner's land altogether and changing the detailed project report that was prepared by experts and approved by the competent Authority, and hence unnecessary delay, leading to time overrun and cost overrun in the project which the respondent no.5 has undertaken to complete by 15.03.2023. 21. This Court is of the opinion that in case the petitioner suffers any damage due to the laying of electricity lines over his land or erection of towers for the said purpose by the respondents no.3 to 6, he is free to claim compensation as is permissible under Act. 22. The writ petition is disposed of with a direction to the District Magistrate to consider claim for compensation of the petitioner in accordance with relevant orders/circulars issued by the Government of India as Respondents No. 3 to 5 are all Central Government Public Sector undertakings.