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THE HIGH COURT OF ORISSA : CUTTACK. W.P.(C) No. 12084 of 2013 In the matter of an application under Articles 226 and 227 of the Constitution of India. ___________ Biswanath Singh & six others …… Petitioners. -Versus- State of Odisha & nines others. …… Opposite parties. For petitioners : M/s. B.Pujari, A.K.Baral & A.C. Nayak. For opposite parties : Mr. R.K. Mohapatra, Govt. Advocate & Mr. P.K. Muduli, Addl. Standing Counsel (for O.P. Nos. 1 to 5) Mr. S.D. Das, Asst. Solicitor General (for O.P. No.6) Mr. Chetan Sharma, Sr. Advocate & M/s.Satyajit Mohanty, D.P. Sahu, & R.R.Swain (for O.P. Nos. 7 & 8). M/s. Biplab Mohanty, T.K. Patnaik, A. Patnaik, Sona Patnaik, R.P. Ray (for O.P. No.9). Mr. Debi Prasad Sahoo (for O.P. No.10) PRESENT ; --------------------- THE HONOURABLE CHIEF JUSTICE MR. C. NAGAPPAN AND THE HONOURABLE MR. JUSTICE I. MAHANTY _______________________________________________________________ _ Date of judgment - 30-07-2013 _______________________________________________________________ _ C. Nagappan, C.J. Petitioners, seven in number, claiming to be the residents of village Nisha in the district of Angul have filed this -2- writ petition by way of Public Interest Litigation averring that they have filed this writ petition in the interest of the residents of village Nisha. They have sought for a direction to opposite parties not to take any action to the detriment of the villagers of Nisha before complying with the rehabilitatory measures under the law. 2. The case of the petitioners is that M/s. Monnet Power Company Ltd.(MPCL)-O.P. No.7 has entered into a Memorandum of Understanding with the opposite party No.1- Government of Odisha to set up a Thermal Power Plant at Mallibrahmani in Angul district. Ministry of Power,Government of India-O.P. No.6 has also accorded approval for construction of transmission line from MPCL power plant to Power Grid Corporation of India Ltd. (PGCIL)’s pooling station at Angul by their letter dated 18.10.2011 as per Annexure-2 and the District Magistrate, Angul, namely, O.P. No.4 also accorded permission to carry out the construction activities of the transmission line vide order dated 23.04.2012. According to the petitioners, though most of the land have been acquired in the village, residential area of the said village has not been acquired and the O.P. No.7 is drawing high voltage transmission line above the residential area of village Nisha and that endangers the residents of the village. In this regard, villagers have raised their grievances before the Revenue/Administrative authorities by -3- sending representations dated 7.2.2013 and 6.3.2013 highlighting the drawing of high voltage transmission line in the residential area of the village and for not providing rehabilitation measures to the residents as contemplated under law, but no action is taken. It is also averred by the petitioners that purchase of land by O.P. No.7 is illegal because the same has not been notified in accordance with law, namely, under Section 73(c) of the O.L.R. Act. 3. A detailed counter affidavit has been filed on behalf of O.P. Nos. 7 & 8 stating that the entire writ petition is premised on an alleged breach of the Orissa Resettlement and Rehabilitation Policy, 2006 in construction of the transmission line and since the construction of the transmission line in question does not contemplate any acquisition of land, the said policy is completely inapplicable. The acquisition of land for the power plant or any alleged displacement there from is not the subject matter of the present writ petition. It is also stated that the total projected requirement is 825.10 acres of land, out of which 386.09 acres are of Government Land and 439.01 acres are private land. According to O.P. Nos. 7 & 8, the residential area of village Nisha neither falls within the land already acquired nor within the proposed acquisition. It is also specifically averred in the counter that the land acquisition has -4- been carried out by M/s. Industrial Development Corporation of Orissa Ltd. (IDCOL)-O.P. No.9 strictly in accordance with law and complying with the policies and the petitioners have not sought for any relief in that respect and their only grievance is with regard to construction of the transmission line. It is further averred in the counter that though the transmission line is passing within the revenue village of Nisha, it would not be laid over any inhabited area and a draft lay out plan under Annexure- B/7 would indicate that the habitation is situated at a safe distance from the proposed alignment of the transmission line,
Decision
hence the very foundation of the writ petition does not survive. It is also averred that the land owners, on whose property the towers are intended to be set up have not challenged the construction of transmission line on their land and they are not the petitioners in the present writ petition and the present petition has been instituted for extraneous reasons. 4. According to opposite party Nos. 7 & 8, they have made a substantial investment of Rs. 3,700 crores in the project and it is almost ready to evacuate the power from its plant. Further, though the petitioners are claiming to be the residents of village Nisha, no proof of residence has been annexed in the writ petition and nothing is there on record to substantiate their claim regarding residence. It is also averred that though one -5- Himansu Ranjan Singh has affirmed the averments in the writ petition, there are no documents indicating the authorization given to him by the other petitioners to swear this affidavit. It is also stated in the counter that by letter dated 18.10.2011 under Annexure-I/7, the Ministry of Power, Government of India granted approval to the opposite party No.7 for construction of the dedicated transmission line from its power plant to Angul Pooling Station and on 20.10.2011, the Ministry of Power prescribed a modified procedure for obtaining authorization under Section 164 of the Electricity Act, 2003 and as per the said procedure, opposite party No.7 advertised the proposed transmission scheme in two daily local newspapers dated 02.07.2011 and 03.07.2011 and further a notice was published in the Official Gazette on 04/10.02.2012 as per Annexure-K/7 series calling for objection if any. However, no representation/objection was received from the general public in respect of placing of transmission lines and thereafter on 01.06.2012 under Annexure-L/7, the Ministry of Power granted approval under Section 164 of the Act to the opposite party No.7. By order dated 23.04.2012 the District Magistrate-O.P. No.4, in exercise of powers under Section 16 of the Indian Telegraph Act, 1885, authorized the opposite party No.7 to carry out construction of 400 KV transmission line from the premises of -6- MPCL to the PGCIL’s Pooling Station and construction has been permitted over both Government and the private land as per Section 10(d) of the Indian Telegraph Act, including at village Nisha, Tahasil Chhendipada in the district of Angul. It is stated that O.P. Nos. 7 & 8 have already paid compensation equal to Rs.1.15 lakhs to 4 land owners in the villages who would be affected by the construction of the line and they are also in the process of negotiating with other village residents on whose land the towers are proposed to be established. 5. Mr. Pujari, learned counsel for the petitioners submitted that drawing of transmission line over the residential area of village Nisha endangers the lives of the residents and non providing of rehabilitation measures, prescribed under the 2006 Policy, to the villagers/residents of Nisha is unjust and illegal. 6. Per contra Mr. Chetan Sharma, learned Sr. Counsel on behalf of O.P. Nos. 7 & 8 submitted that the construction of transmission line in question does not contemplate any acquisition of land and hence the said 2006 Policy is inapplicable and the averments made in the writ petition regarding non-compliance of the Policy are vague and lack in material particulars and there is no specific averment as to which provision of the Policy has been breached. It is his further submission that the transmission line, though passing -7- through the village area of Nisha, it would not be laid over any inhabited area as evident from the draft layout plan and the habitation is situated at a safe distance from the proposed alignment. It is also contended by Mr. Sharma that the person on whose land the towers to be set up have not filed the writ petition and the present writ petition is mala fide. Mr. Sharma, learned Sr. Counsel further contended that on 18.10.2011 the Ministry of Power, Government of India granted approval for construction of the transmission line and as per the prescribed modified procedure dated 20.10.2011, opposite party No.7/licensee effected the newspaper publications and Gazette publication inviting objections. However, no objection/representation was received from any person and thereafter on 01.06.2012 final approval under Section 164 of the Electricity Act was given for construction of the transmission line and also on 23.04.2012 the District Magistrate, in exercise of powers under Section 16 of the Indian Telegraph Act, 1885, permitted the O.P. No.7 to carry out construction of transmission line over both Government and the private land and since all necessary approval and clearances have been obtained, there is no breach of any statutory provisions. 7. His last submission is that none of the petitioners has ever made any objection or representation pursuant to the -8- public notice and they should not be permitted to challenge the alignment of transmission line and the writ petition is motivated and has been filed with a mala fide intention to obstruct the construction of the transmission line. Further, the petitioners have not satisfied the Orissa High Court Public Interest Litigation Rules, 2010, more particularly, Rules 3 to 5 therein and hence, this writ petition is liable to be rejected. In this regard, Mr. Sharma, placed reliance on the decision of the Hon’ble Supreme Court in the cases of Dr. B. Singh Vs. Union of India & Ors., (2004) 3 SCC 363; Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & Ors, (1999) 1 SCC 492; and Networking of Rivers, In Re., (2012) 4 SCC 51. 8. Opposite party No.7 is establishing a Power Generation Plant at Mallibrahmani in the district of Angul in Odisha on an area of 508.47 acres. The total projected requirement is 825.10 acres of land (386.09 acres of Government land and 439.01 acres of private land) and mostly the land acquisition has been carried out by M/s. IDCOL, Bhubaneswar. Opposite party Nos. 7 & 8 have categorically stated that none of the land which has been acquired or proposed to be acquired is homestead land and more particularly, the residential area of village Nisha neither falls within the land already acquired nor within the proposed acquisition. It is further stated by them that -9- all persons, whose lands have been acquired, have been paid cash compensation and also provided with jobs as per the obligation under 2006 Policy. The petitioners have not challenged the acquisition of land for the power plant or any alleged displacement there from, in this writ petition. The only prayer of the petitioners relates to the construction of transmission line over the residential area of Nisha village. The petitioners, though claimed to be the residents of village Nisha they have not adduced any proof regarding the same. The draft layout plan under Annexure-B/7 shows that the habitation is situated at a safe distance from the proposed alignment of the transmission line and it is not being laid over any inhabited area of village Nisha. In fact the approximate distance of the proposed towers from the village habitation in meters is mentioned in the table found in paragraph 2 (F) of the counter affidavit and for better appreciation it is extracted below: Sl.No. Tower Point No. 1. 2. 3. 4. 5. 6. 7. 44/0 44/1 44/2 45/0 46/0 47/0 48/0 Approximate distance from village habitation in Mtrs. 1480 1240 960 640 370 360 600 -10- The above detail indicates that the minimum approximate distance of the tower from village habitation is 360 meters and maximum is 1480 meters. Further, the petitioners are not the land owners on whose property the towers are intended to be set up and the actual land owners have not challenged the construction of the transmission line over their land. 9. The construction of the transmission line in question does not contemplate any acquisition of land and hence the 2006 Policy is completely inapplicable. The averments in the writ petition regarding non-compliance of 2006 Policy are vague and there is no specific averment as to which provision of the Policy has been breached. More over 2006 Policy has provided a Grievance Redressal Mechanism and in the event of non- compliance of the Policy, if any, the petitioners have to approach the said mechanism for redressal of their grievance. 10. As per Annexure-I/7, the Ministry of Power, Government of India granted approval on 18.10.2011 for construction of the transmission line from MTPS to Angul Pooling Station. Further, as per the prescribed modified procedure dated 20.10.2011, the opposite party No.7 advertised the proposed transmission line in local newspapers dated 2.7.2011 and 3.7.2011 and also published the notice in the -11- Official Gazette on 04/10.02.2012, copies of the publication are found under Annexure-K/7 series. However, petitioners have not made any objection/representation in respect of placing of transmission line and since no objection was received, as per Annexure-L/7 the Ministry of Power granted final approval under Section 164 of the Electricity Act for construction of the transmission line. The District Magistrate-O.P. No.4, in exercise of power under Section 16 of the Indian Telegraph Act, 1885, by order dated 23.04.2012 has also authorized the opposite party No.7 to carry out the construction of transmission line. O.P. Nos. 7 & 8 have already paid the compensation equal to Rs.1.15 lakhs to 4 land owners who would be affected by the construction of towers and they are also in the process of negotiating with other land owners on whose land towers are proposed to be established. The said details are found in the documents under Annexure-M/7 series. The above documents show that necessary permissions under Section 164 of the Electricity Act as well as under the Indian Telegraph Act have been obtained. The petitioners have neither challenged the approval granted under Section 164 of the Electricity Act for construction of transmission line nor the decision making process therein. Factually also, as already seen, the proposed transmission line is not passing over any inhabited area of -12- village Nisha. Therefore, the contention of the petitioners is devoid of any merit. 11. The last contention of the learned Sr. Counsel on behalf of opposite party Nos. 7 & 8 that the writ petition which has been filed in the guise of Public Interest Litigation lacks bona fide and does not fulfill the requirements as prescribed under the Orissa High Court Public Interest Litigation Rules, 2010 is to be countenanced. There is no doubt about the legal preposition laid down in the decisions of the Hon’ble apex Court upon which reliance has been placed by him in this regard. We find absolutely no merit in the writ petition and the same is liable to be dismissed. In the result, the writ petition is dismissed. The interim order dated 05.06.2013 stands vacated. No costs. ……………………….. Chief Justice ………………………….. Judge I. Mahanty, J. I agree. Orissa High Court, Cuttack The 30th day of July, 2013/A. Dash