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2025 DIGILAW 127 (HP)

Residents of Village Multhan v. State of H. P.

2025-01-10

G.S. SANDHAWALIA, SATYEN VAIDYA

body2025
JUDGMENT : G.S. Sandhawalia, C.J. Challenge in the present Letters Patent Appeal is to the interim order dated 23.12.2024, passed by the learned Single Judge in CWP No. 15976 of 2024, wherein the present appellant had raised challenge to the order dated 07.12.2024, passed under Section 163 of Bhartiya Nagrik Suraksha Sanhita, 2023, (for shortthe ‘BNSS) corresponding to the earlier provisions of Section 144 of Cr.P.C., 1973. 2. Keeping in view the situation, the appellants/petitioners were given relief to the extent that the residents of the area could not be prevented from approaching their private land beyond the restricted area which had been obstructed for the Hydro Power Project. 3. The writ petition is still pending and is fixed for11.03.2025. 4. The learned Counsel for the appellant submits that by the order under challenge, the rights of the appellants have been affected and the residents of the village are not being allowed to approach the forest land/pastures by respondent No. 9-M/s KU Hydro Power Private Limited, and the learned Single Judge should have stayed the order passed by the S.D.M. 5. The order which was initially passed by the Sub Divisional Magistrate, Baijnath, District Kangra, was on account of the possibility of law and order problem, threats, public nuisance and possibility of clashes between the village residents and the private respondent as the residents of the village were not allowing the project authority to carry out repair and restoration work of the project after the leakage of the head of penstoke. In such circumstances, directions were issued to prohibit as a measure of emergency, the local residents of the village from assembling near and along the penstoke from its head region down to the Project power house and to carry any kind of arms, lethal, weapons, lathis, swords, knives and daggers, iron rods etc, for a limited period of 60 days. Thus, the order as such is effective from07.12.2024 to 07.02.2025. 6. It is thus apparent that almost 50% of the period as such has expired. 7. This case has a chequered history. On 10.05.2024, an incident of heavy abnormal leakage had occurred from the junction of penstock and surge shaft area of the project and the damage was not only caused to the Project, but also to the surrounding areas including private properties of the village. The generation in the Power Project was stopped w.e.f. 10.05.2024. This case has a chequered history. On 10.05.2024, an incident of heavy abnormal leakage had occurred from the junction of penstock and surge shaft area of the project and the damage was not only caused to the Project, but also to the surrounding areas including private properties of the village. The generation in the Power Project was stopped w.e.f. 10.05.2024. A meeting was then convened in the office of the Tehsildar on 19.05.2024 and in the said meeting, after affording opportunity to both sides, a compensation to the tune of a sum of Rs. 2,24,56,960/- was assessed for the villagers on account of damages suffered by them due to the leakage of the penstock. This compensation was also included in the compensatory amount to the affected villagers by covering the loss to their crops for over next 10 years and the respondents were directed to remove the debris and restore the land to its original shape. However, on account of the Project Authorities not being allowed by the villagers to use the path in their village for accessing the Project site in order to repair the penstock leakage site and to make the Project functional again, the respondent No. 9 was forced to approach this Court by way of filing Civil Writ Petition No. 10265 of 2024, which was decided vide judgment dated 17.09.2024. (Annexure P-9). 8. Communication dated 15.07.2024 addressed by the Chief Engineer (Energy), Directorate of Energy, Himachal Pradesh to the Deputy Commissioner, District Kangra at Dharamshala, communication dated 08.07.2024 by the Sub Divisional Magistrate Baijnath, District Kangra and communication dated 15.07.2024 from the Directorate of Energy, Himachal Pradedesh, were noticed to show that the repair at penstock leakage site was essential to avoid another disaster in the area during the heavy rains. 9. 9. In such circumstances, the writ petition was disposed of with the following directions by the learned Single Judge herein: “Taking into consideration the case of the petitioner, the grievances projected by it in the petition as also the documents appended therewith, this writ petition is disposed of with direction to respondent No.2-Deputy Commissioner Kangra at Dharamshala to take all appropriate measures for (i) resolving the deallock between the petitioner and the villagers (ii) enabling the petitioner to use the path through village Multhan for accessing the project site in order to repair the Penstock leakage site so that generation of electricity may resume as wastage of electricity would be a national loss (iii) safeguarding the interests of villagers. It shall be open for the Deputy Commissioner to hold meetings of all stakeholders including the officials of District Administration, representatives of the petitioner as also the affected villagers in order to resolve the issue to ensure that the project becomes functional and at the same time the interests of villagers are also adequately safeguarded & protected. The entire exercise shall be done within a period of three weeks. Pending miscellaneous application(s), if any, shall also stand disposed of. 10. The said order was never subject matter of challenge even though the case of the counsel for the appellants is that they had not been heard at the time of passing of the order. 11. Needless to say, it was always open to the appellants to file an appropriate application for modification of the order dated 17.09.2024, if so desired, which they chose not to do. 12. Apparently, on account of the directions issued by the learned Single Judge while noticing that generation of electricity has to be resumed as wastage of electricity would be a national loss and safeguarding the interests of villages, it was left open for the Deputy Commissioner to hold meetings of all stakeholders including the officials of District Administration. Apparently, on account of the present appellants and the residents of the area not adhereing to the directions, the SDM was forced to pass order dated 07.12.2024. 13. The learned Single keeping in view the arguments raised, has protected the rights of the residents regarding their approach to the private areas. 14. Apparently, on account of the present appellants and the residents of the area not adhereing to the directions, the SDM was forced to pass order dated 07.12.2024. 13. The learned Single keeping in view the arguments raised, has protected the rights of the residents regarding their approach to the private areas. 14. We are of the considered opinion that the matter pertains to a infrastructure project and the generation of electricity and the loss, which is being caused, cannot be compensated, as it is like an empty seat in a flight which has taken off. Therefore, each and every days’ lapse in repairing the penstokes as such cannot be compensated and the respondent-Company would also face the loss which is being caused to the State, where the electricity is to be generated and distributed to the consumers. 15. In such circumstances, a resort as such to the proceedings under Section 163 BNSS, 2023 does not seem to be without any basis. The said Section provides that the Magistrate can consider any direction likely to prevent or tend to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to prevent, obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquility or a riot or an affray, for which the said Section can be invoked. 16. As noticed above, the order was passed for a specific period of 60 days only and the petitioner had also a remedy, as such to approach the Magistrate for rescinding of the order under Section 163(5), which was not done and the petitioner chose to file writ petition. 17. We have been shown the photographs, appended alongwith the writ petition, which go on to show that the damage was caused by the leakage of the penstoke and the water which flowed in the stretch of the houses and land of the inhabitants of the village. 18. In such circumstances, the District Administration had rightly dealt with such kind of emergent situation and also assessed the loss which had occurred. Otherwise also, it is always open to the present appellants to seek redressal for enhancement of compensation, if they are so aggrieved. 19. 18. In such circumstances, the District Administration had rightly dealt with such kind of emergent situation and also assessed the loss which had occurred. Otherwise also, it is always open to the present appellants to seek redressal for enhancement of compensation, if they are so aggrieved. 19. In such circumstances, we do not feel it a fit case to further prolong the dispute, keeping in view the fact that the impugned order has a limited shelf life. 20. Accordingly, the appeal is dismissed alongwith pending applications, if any.