High Court
Case Details
WP(C) 106/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA This writ petition is in respect of installation of High Voltage Electrical Tower Line. According to the petitioners numbering 11, if the same i s allowed to be drawn over the particular route, the same will have telling effe ct on their structures. For a ready reference, the prayer made in the writ petit ion is quoted below:- (cid:28)In the facts and circumstances, it is therefore most respectful ly prayed that, Your Lordship may graciously be pleased to admit this petition, call for the records, issue rule, calling upon the Respondents to show casue as to why- I. A writ in the nature of mandamus should not be issued directi ng the Respondents not to transmit the high voltage Electrical Tower Line at the surveyed road nearby 200 Beded Civil Hospital, Goalpara English School, Circuit House, Law College, Nurse Training Centre, proposed T.B. Hospital, Music School , Cultural School, more particularly over the petitioners patta lands situated a t Village-Bhalukdubi (Jangale Block No.2) under Balijana Revenue circle in the D istrict of Goalpara, Assam. II. A writ in the nature of mandamus should not be issued direct ing/restraining the Respondents not to evict/vacate the petitioners from their p atta lands without due process of law;
Legal Reasoning
III. A writ of similar nature should not be issued directing the Respondents, more particularly the Respondent No.7 to divert/shift the surveyed /proposed road of high voltage Electrical Tower Line at least 2 K.M.s towards so uthern side from the present site of Village-Bhalukdubi (Jangale Block No.2) und er Balijana Revenue Circle in the District of Goalpara, Assam and after showing cause(s) if any and upon hearing the parties be pleased to make the rule absolut e and/or pass any other appropriate writ, order or direction as Your Lordship’s may deem fit and proper in the facts and circumstances of the case. (cid:29) In the counter affidavit filed by the respondent No.2, it has be en stated that the petitioners have constructed pucca houses on their land and a re residing there. However, it has also been stated that as regards the petition ers No.1, 2, 4, 5, 6, 8 and 9, they are holding the Patta land, but the other fo ur petitioners i.e. the petitioners No.3, 7, 10 and 11 do not have any Patta lan d. Moreover, the petitioners’ No. 1, 2, 4, 5, 6, 8 and 9 purchased the Patta lan d only in the year 2011-12 from the old Pattadar. In Paragraph 6 of the said aff idavit, it has also been stated that as per record, no representation has been r eceived from the petitioners and that the prior approval of the Government of In dia in the Ministry of Power has been received by the respondent Corporation for construction of Electrical Tower Drawer/Power License etc. as required u/s 68 o f the Electricity Act, 2003. In Misc Case No.667/2013, filed by the respondent corporation i. e. respondent No.7 seeking vacation of the interim order dated 10.01.2013, by wh ich the said corporation was restrained from raising the proposed High Tension E lectric Line, it has been stated that the corporation is supervising the constr uction works of a 400 KV (Paragraph 3 of the application) Double Circuit Transm ission Line from Pallatana (Tripura) to Bongaigaon (Assam) via Silchar, Byrnihat , Azara and Goalpara under consultancy agreement with North East Transmission Co mpany Limited. It has been stated in the application that while carrying out the survey etc. in November, 2010, noticing the objection from local people, the ma tter was taken up with the Deputy Commissioner, Goalpara. Thereafter, the Additi onal Deputy Commissioner (Revenue), Goalpara inspected the site and considering the fact that the line might affect certain public places, the Corporation was a dvised to make alternative route through paddy fields. Accordingly, in December, 2010 an alternative route was finalized. While doing so, the following points w ere taken into consideration:- (cid:28) i) Brahmaputra River Crossing- Finalized from Jogighopa to Pan charatna Hill with M/S Inland Water Authority of India ltd. M/S Gammon India Ltd . is constructing the Pile/Well foundation along the Upstream of Naranarayana Se tu and parallel to the existing 220 KV Transmission Line of ASEB. ii) Forest Clearance- The line passes through Pancharatna Hill F orest (2.05 KM) and Bhalukdubi Forest (0.5 KM) and in this regard necessary fore st clearance have already been received from the Ministry of Environment & Fores t, Government of India. iii) Railway Crossing- The line crosses the Broad Gauge Railway line near Goalpara Railway Station and in this regard the clearance from the Rai lways was required. (cid:29) In paragraph 8 of the application, it has been stated that while work was in progress in November 2011, again obstruction was raised and accordi ngly the matter was informed to the Deputy Commissioner, Goalpara, who upon a si te visit did not find anything to be objected to. Denying the plea of the petiti oners that in case of erection of the high voltage line, there will have telling effect on the Civil Hospital, Law College, Circuit House etc. as pleaded in the writ petition, it has been stated that the alternative route is through the pad dy field, where there is no structure. In this connection, the statements made i n paragraph 9 and 11 of the application are quoted below:-
Decision
(cid:28)9. That the claim that the proposed line would pass through the land of the petitioners over which there are permanent houses, shops and factor y are denied in its entirety. The writ petition has been filed by grossly misrep resenting facts and by suppressing material facts known to the petitioners. The writ petitioners have made false statement on oath stating that the high voltage electricity line would pass over 200 Beded Civil Hospital, Law College, Circuit House etc. The present alternate line is through paddy field only and is free f rom any houses/trees and therefore there is no occasion for any of the petitione rs to vacate or shift from their houses/shops. In fact even the original line di d not pass over the 200 Beded Civil Hospital, Law College etc. and there were on ly some Semi RCC houses and trees like bamboo as on the year 2010 when the surve y was made. In any case, the alternate route was suggested and finalized only to avoid damage to houses and trees and accordingly, the present route was finaliz ed through paddy cultivation land which is free from houses and trees. 11. That your applicant states that in the meantime, the officer s/engineers of the applicant company kept on persuading the effected land owners of the tower location in the alternate route which are in paddy fields, ultimat ely, the land owners of all four tower location namely Shri Hamfal Rabha, Smt. E nilla Sangma and Smti Greenalish Sangma have accepted the surface damage compens ation and signed compensation notice form for settlement of compensation. Your applicant craves leave of this Hon’ble Court to produce cop ies of the acceptance form duly signed by the land owners at the time of the hea ring. (cid:29) As regards the prayer for vacating the interim order, the respon dent Corporation in their application has urged the following grounds:- i) That the basic premise on which the interim order has been pa ssed namely laying down of the 400 KV electricity supply line would pass over th e residences and shops of the writ petitioners are absolutely incorrect to the k nowledge of the petitioners. The present line passes over only paddy land. In fa ct, a false statement has been made on oath for which, appropriate steps may be initiated against the petitioners. It is only on this false representation that the interim order has been passed and had this Hon’ble Court been apprised of th e actual facts, there would not have been any occasion to pass the aforesaid int erim order. ii) That the petitioners are not even the owners of the land whe re towers have been constructed. The actual affected parties having accepted the compensation, it is malicious on the part of the petitioners to obstruct a proj ect of national importance. iii) That due to the halt in the on-going process of laying down the line in compliance of the interim order, the project which is to be complet ed within a schedule is adversely affected and therefore public interest calls f or vacation of the interim order. iv) That the actual land owners in respect of the towers have al ready accepted and signed the compensation forms. v) That the petitioner having forcefully prevented the answering respondent from carrying out the aforesaid works cannot be allowed to take adva ntage of their own misdeeds. The petitioners having approach this Hon’ble Court without clean hands, the interim order is liable to be vacated in the interest o f justice. vi) That the aforesaid work of transmission namely - (cid:28)Pallatana-C haraibari-Silchar, Silchar-Khelerihat, Khelerihat-Byrnihat and Byrnihat Bongaiga on section of 400 KV Double Circuit Pallatana- Bongaigaon Transmission Line is o f immense national importance and stalling of the same would be detrimental to p ublic interest of North East in particular. vii) That the aforesaid project has been carried out by duly fol lowing the provisions of the Indian Electricity Act, 2003. Therefore, the interi m order dated 10.01.2013 may kindly be vacated in the interest of justice and pu blic service. (cid:29) I have heard Mr. K.P. Sharma, learned Senior Counsel, assisted b y Mr. D.A. Kaiyum, learned counsel for the petitioners and so also Mr. S.K. Medh i, learned counsel representing the respondent No.7. I have also heard Mr. Nur M ohammad, learned State Counsel. While taking up the matter relating to vacation of the interim o rder, the entire writ petition has been heard. I have also considered the entire materials on record. Mr. Sharma, learned counsel for the petitioners while referring to the provisions of the Works of Licensee Rule, 2006, has also referred to a de cision of the Apex Court reported in 2001 (4) SCC 9 (Dhanajaya Reddy -Vs- State of Karnataka) so as to emphasis that the particular procedure required to be fol lowed as per the said Rules of 2006 having not been followed by the respondent C orporation, their entire action is bad in law. He submits that if something is r equired to be done in a particular manner, the same will have to be done in that manner and not otherwise. As regards the plea of the respondent Corporation tha t there has been change of the route so as to draw the line over paddy field, Mr . Sharma, learned counsel for the petitioners submits that it is not correct tha t the proposed line will be drawn through paddy field and not over the residenti al houses of the petitioners. Countering the above arguments, Mr. Medhi, learned counsel representing the resp ondent corporation, submits that there has been suppression of material fact in the writ petition and on this count alone, the writ petition is liable to be dis missed. Referring to the provisions of the Electricity Act, 2003 and the Indian Telegraph Act, 1885, he submits that the proposed action of the respondent Corpo ration is in tune with the said provisions. Mr. Medhi has also produced the copy of the letter dated 20.05.2010, addressed to the Assistant Settlement Officer, Balijana/Matia/Dudhnoi-Rangjuli/Lakhipur by the Additional Deputy Commissioner, Goalpara, furnishing information that u/s 164 of the Indian Electricity Act, 200 3 and Part-III of the Indian Telegraph Act, 1885, for survey and construction of 400 KV Transmission Line shall be routed in Goalpara district through the villa ges as per the enclosed list. By the said letter, request was made to extend ful l co-operation for joint verification to unavoidable surface damage for settleme nt of compensation cases as and when approach by the respondent corporation. In the writ petition, petitioners themselves have stated about s hifting of the route for erection of the Tower Line. While in paragraphs 4 and 5 of the writ petition, the petitioners have referred to their permanent RCC and Semi RCC houses, shops etc. and also likely effect on certain Government and non -Government Institutions, such as, 200 Beded Civil Hospital, Law College, Circui t House, Goalpara etc. in paragraph 8 of the counter affidavit, it has been stat ed that after raising objection, the respondent No.7 corporation has changed the proposed route of the Tower Line and now the same would cross over the patta la nd of the petitioners. Although the petitioners have referred to the Annexure-II representation in respect of their objection, but on perusal of the same, it is found that the said objection was prior to changing of the route and not afterw ards. Along with the Misc Case No.667/2013, the respondent corporation has given a Map (not drawn to scale), showing the change of the location/alternate route from p oint No.49 to point No.50. Originally it was a straight line from point No.49 to point No.50 via point No.49 C with slight deviation. Now the erection will be t hrough the alternate route via point No.49A, 49B and 49C, over paddy land. Annex ure-C is the letter dated 20.12.2011, addressed to the Deputy Commissioner, Goal para by the representative of the respondent corporation intimating about the fi nalization of the new route, avoiding the Civil Hospital, Quarters, residential houses etc. Mr. Medhi, learned counsel for the respondent corporation, has fairl y submitted that if upon going the high voltage lines over the new routes, any c ompensation is found to be payable to the occupiers of the patta land, same woul d be duly taken care of. However, he has not hastened to state that in the new r oute over the paddy field, there is no residential house. From the above narration of facts, what has emerged is that alth ough initially the line was sought to be drawn affecting some shops including re sidential houses, but later on, a decision was taken to change the route so as t o draw the line over paddy field. If for such drawing of line over paddy field, any compensation is required to be paid, the respondent corporation would be dut y bound to make the compensation. As regards the plea of the petitioners that th e provisions of Works of Licensee Rules 2006 have not been followed, but by the aforesaid letter dated 20.05.2010, addressed to the Assistant Settlement Officer , it was conveyed that survey and construction of 400 KV Transmission Line shall be routed in Goalpara district through the villages as per the enclosed list. As discussed above, the required permission was also accorded to the res pondent corporation and in fact, the installation is as per the approval accorde d by the Central Government. On a total reading of the writ petition, including the prayers quoted ab ove, the apprehension expressed by the petitioners that the transmission of high voltage Electrical Tower Line would be constructed over the residential houses and shop premises of the petitioners is baseless in as much as after the objecti on raised and as stated by the petitioners themselves in paragraph 8 of the writ petition, there has been change in the route and now the Electric Line would be drawn over the patta land without affecting any residential houses. Above being the position, I do not find any infirmity in the decision of the respondent corporation. However, at the same time they cannot absolve of th eir responsibility to pay compensation in case it is found that for drawing the High Voltage Line, the petitioners are entitled to any compensation, which will have to be assessed by the appropriate authority. Writ petition stands disposed of. The interim order operating stands vacated.