The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 18806 OF 2023 & I.A. No.2493 of 2024 (An application under Articles 226 & 227 of the Constitution of India) ***** Subash Nayak …… Petitioner -Versus- Odisha Power Transmission Corporation Ltd., Bhubaneswar and others .…… Opp. Parties Advocates appeared: For Petitioner : Mr. Hrudananda Mohapatra, Advocate For Opp. Parties : Mr. Ashok Kumar Parija, Advocate General being assisted by Mr. Swayambhu Mishra, ASC CORAM : MR. JUSTICE K.R. MOHAPATRA ------------------------------------------------ Heard and disposed of on 16.05.2024 ---------------------------------------------- JUDGMENT K.R. Mohapatra, J. 1. This matter is taken up through hybrid mode. 2. I.A. No. 2493 of 2024 has been filed by the Opposite Party Nos.1 & 2-Odisha Power Transmission Corporation Limited (for brevity ‘OPTCL’) with a prayer to vacate the interim order dated 13th June, 2023 passed by this Court in I.A. No.8753 of 2023, wherein it is directed that status quo W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 1 of 8 // 2 //
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 over the case land shall be maintained till the next date. The interim order is continuing till date. 3. While taking up the I.A. for vacation of stay it is felt
Decision
that the merit of the writ petition has to be gone into. Hence, on consent of learned counsel for the parties, the writ petition is taken up for final disposal. 4. This writ application has been filed with a prayer to restrain the Opposite Party Nos.1 and 2 from installing High Tension (HT) Tower for drawl of 220 KV D/C line Pandiabil-Samagara over the land of the Petitioner, i.e., Plot No. 1354 under Khata No. 410 to an extent of Ac.0.060 decimal situated in Mouza- Balukhanda under Puri tahasil in the district of Puri (for brevity ‘the case land’). 5. Mr. Mohapatra, learned counsel submits that the Petitioner and his brother, namely, Sri Prasanta Nayak got the case land in a family partition by virtue of a registered partition deed dated 16th March, 2022 (Annexure-2) and continued to possess the it jointly with his brother. Although the case land is recorded as Sarada-II (agricultural land), but it is befitting for homestead purpose and the Petitioner was intending to construct his residential house thereon. Initially an advertisement for drawl of HT line was made on 30th September, 2013 (Annexure-C/1). Although the Mouza Balukhanda is reflected in the notification, but no particulars of the land over which the HT line was proposed to be drawn, including the case land, was specifically stated therein. No communication whatsoever for construction of tower or W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 2 of 8 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 drawl of HT line was ever made to the Petitioner at any time. As such, the Petitioner was kept in dark about the construction of the tower and drawl of HT line over his land. Although a portion of the land is proposed to be used for construction of tower, but the entire case land will render useless for being used either for agricultural purpose or for any other purpose including construction of any residential house thereon. Thus, the Petitioner will be seriously prejudiced, if the tower is constructed over the case land. As yet no construction has been made on the case land. As such, the Petitioner is entitled to the relief claimed in the writ petition. Thus, this Court finding a prima facie case in favour of the Petitioner as an interim measure directed the parties to maintain status quo over the case land. 6. Mr. Parija, learned Advocate General appearing for the OPTCL submits that during cyclone ‘Fani’ in 2019, 220 KV Pandiabil-Samangara D/C line was severely damaged. Thus, the OPTCL undertook restoration of the aforesaid HT transmission line by reconstructing towers and drawing the conductor. Out of 92 towers, 91 towers have already been constructed by the time the interim order was passed by this Court. So far as the tower over the case land, i.e., the land of the Petitioner is concerned, pile capping has already been done. But, no further construction could be made. It is his submission that the Petitioner has a remedy to claim for compensation for construction of tower and drawl of HT line over the case land. Thus, the interim order should be vacated W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 3 of 8 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 as it creates serious prejudice to the public at large. He also relied upon the case of Power Grid Corporation of India Ltd. –v- Century Textiles and Industries Ltd. and others, reported in (2017) 5 SCC 143, wherein at Paragraph-26, Hon’ble Supreme Court observed as under: for erecting “26. 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 towers and where gets utilised agricultural activities are not prejudiced/obstructed in any manner. The purpose is to avoid buildings, religious places, ponds etc. while laying down these it becomes transmission inevitable that towers are placed on the private lines to the minimum and least extent possible. That is what was tried to achieve in the instant case. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 mts. from the 400KV line (already existing) or the tower structure. Mining of limestone can be taken up by adopting of explosive/blasting – without damage to the tower foundation/tower structure or the line, which can be jack hammer/pneumatic accomplished by using hammer with compressor so as to avoid any damage to the line or tower. This aspect has also been taken note of by the learned Single Judge of the High Court in the judgment dated March 11, 2008. The Division Bench did not differ with any of these findings.” is only when the methods lines. It other than use W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 4 of 8 (emphasis supplied) // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 6.1 The case land is recorded as kissam Sarada-II, which is an agricultural land. The case of the Petitioner is that he along with his brother got the case land in a family partition through a registered partition deed dated 16th March, 2022. It is contended in the writ petition that the Petitioner intending to construct his residential house thereon. Since the immovable property is an agricultural land, no construction over the same can be made without converting it to be used for homestead purpose. The alignment of the transmission line cannot be changed at this stage. Thus, the only remedy available for the Petitioner is to claim for compensation under the provisions of Telegraph Act, 1885. As such, the ratio in Power Grid Corporation of India Ltd. (supra) is squarely applicable to this case. He, therefore, submits that the interim order dated 13th June, 2023 passed in I.A. No.8753 of 2023 may be vacated and the writ petition is liable to be dismissed. 7. Heard learned counsel for the parties. Perused the material placed before me. 8. From the materials available on record, it appears that 220 KV HT D/C line from Benapunjuri to Samangara was constructed pursuant to the gazette notification dated 30th September, 2013. Due to the cyclone ‘Fani’ during May, 2019, the Pandiabil-Samagara section of the aforesaid line was severely damaged. Thus, the OPTCL took up restoration of the aforesaid HT line and in that process towers are being constructed for drawl of HT line. One of such tower is being W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 5 of 8 // 6 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 constructed over the case land. The grievance of the Petitioner in this writ petition is that in a family partition through a registered partition deed dated 16th March, 2022, the Petitioner and his brother were allotted with the case land. They are exclusively possessing the land in question. Admittedly, the kissam of land is Sarada-II, which is meant for agricultural use. 9. Mr. Mohapatra, learned counsel for the Petitioner argued that the Petitioner is intending to construct his residential house thereon as the case land is befitting for homestead purpose. Admittedly, the land has not yet been converted for being used as homestead purpose. Thus, no construction can be made at this stage over the case land in question. 10. In view of the observation in the case of Power Grid Corporation of India Ltd. (supra), the alignment of the HT line cannot be changed at this stage as 91 of 92 towers for drawl of the HT line has already been erected. Special care has been taken care to draw the HT line over agricultural land to minimize transmission loss, so also loss to the land holders, as they can still undertake agricultural work after drawl of the HT line. When public interest is pitted with individual interest, the former will be given a preference. Further in the case of Executive Engineer (Electrical), TPCODL and another –v- Soubhangini Patra and another, reported in AIR 2023 Ori 86, this Court has held as under: W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 // 7 // “35. Having appreciated the rival contentions as advanced by the counsel for the parties, we are of the considered view that the GRF did not have the requisite jurisdiction to entertain the dispute relating to shifting of the transformers in as much as by rules/practice directions as framed under Section-164 of the Indian Electricity Act, it has been clearly provided under [Rule- 3 of the Works of Licensee Rules, 2006] that at any time, the owner or occupier of any building or land from which any works have been carried out or any support of an overhead line has been fixed, shows sufficient cause, the District Magistrate or the Commissioner of Police or the Officers so authorized may give order in writing directing any such works support, stay or struck to be removed or altered. This provision has been supplemented by the provisions of the order dated 20.02.2019, which are substantially pari materia to the provisions of Rule-3 of the Works of Licensee Rule, 2006. 36. Therefore, either the District Magistrate or the Commissioner of Police, if he is so authorized to exercise such power is the authority which will deal with such dispute. As such, the order dated 07.04.2021, Annexure- 3 to the writ petition, is interfered with and set-aside as being issued without any jurisdiction. But the opposite party No. 1 is given liberty to approach the authority, I.e. the District Magistrate of the district where the opposite party No. 1's land is situated for removing the transformers which have been installed without her prior permission and for granting compensation, if any.” 11. Mr. Mohapatra, learned counsel for the Petitioner, however, argues that by erecting the tower over the case land it has become useless to be used for any purpose. Such a contention requires factual adjudication. Thus, the Petitioner has a remedy for redressal of his grievances before the concerned Collector and District Magistrate. In view of the provision under the Telegraph Act, 1855 read with Section 164 of the Electricity Act, 2003, the writ Court should be W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 7 of 8 // 8 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 17:48:33 slow in interfering with the nature of grievance raised by the Petitioner in this writ petition. 12. Taking into consideration the facts and circumstances in its totality and more particularly keeping in mind that the tower is being constructed for drawl of 220 KV transmission line from Pandiabil to Samangara, which is in the public interest and the work is being undertaken as a restoration process of existing HT line, the same should not be obstructed in any manner. 13. Accordingly, this Court finds no reason to entertain the writ petition. Hence, the writ petition is disposed of with an observation that the Petitioner, if so advised, may workout his remedy in accordance with law. Interim order dated 13th June, 2023 passed in I.A. No. 8753 of 2023 stands vacated. 14. The writ petition along with the I.As. stand disposed of accordingly. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 16th May, 2024/Madhusmita W.P.(C) No. 18806 OF 2023 & I.A. No.2493 OF 2024 Page 8 of 8