Najmul Hoda v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.4974 of 2021 ====================================================== Najmul Hoda Son of Late Dr. Qumrul Hoda, Resident of Mohalla-Line, Post office, Police Station and District-Kishanganj at Present resident of Road No. 3j/1, New Patliputra Colony, Post Office and Police Station-Patliputra Town and District-Patna.

... ... Petitioner/s

Versus

1.

The State of Bihar through its Chief Secretary, Old Secretariat, Patna. 2.

The Bihar State Power Transmission Company Limited, Vidyut Bhawan Bailey Road, Patna-800001, through its Managing Director, vidyut Bhawan, Bailey Road, Patna.

3.

The Managing Director, Bihar State Power Transmission Company Limited, Vidyut Bhawan, Bailey Road, Patna-800001.

4.

The Chief Engineer, Bihar State Power Transmission Company Limited, Vidyut Bhawan, Bailey Road, Patna-800001.

5.

The District Magistrate, Kishanganj.

6.

The Circle Officer, Kochadhaman, Distirct-Kishanganj. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Arjun Prasad, Adv.

Mr.Najmul Hoda (In person) For the Respondent/s :

Mr.Ravish Chandra, AC to SC-6 For the BSPTCL :

Mr.Ritesh Kumar, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH ORAL JUDGMENT Date : 18-12-2024 1.

The present writ petition has been filed for quashing the notice dated 04.12.2020, issued by the Office of the Bihar State Power Transmission Company Limited (hereinafter referred to as the 'B.S.P.T.C.L.'), whereby and whereunder the petitioner has been directed to remove the trees, temporary houses and crops situated over the land coming in way of the alignment of the proposed 220 KV (D/C) Kishanganj (new)-Thakurganj Transmission Line.

2.

The learned counsel for the petitioner has submitted that

2/14 the petitioner has never personally received the aforesaid notice dated 04.12.2020 and moreover, the said notice dated 04.12.2020 does not contain the details of the land/village/khata number/plot number over which the electric transmission towers and line are to be laid, hence the said notice dated 04.12.2020, being vague, is fit to be set aside.

3.

Per contra, the learned counsel for the respondentB.S.P.T.C.L., Patna has submitted that the construction work of 220 KV (D/C) Kishanganj (new)-Thakurganj and 132 KV (D/C) Thakurganj-Araria Transmission Line has been awarded to M/s APSPL and they being the executing agency, are empowered to issue notice for removal all hindrances in completion of the project in question. It is stated that preference is being given to erection of towers and laying of transmission lines over the land encompassing standing crops/trees and not over the residential area. In fact till 22.10.2022, no construction had been made over the land in question, where the electric towers and transmission lines were to be laid and foundation and erection at LOC No.13/2 and 14/2 has already stood completed from both the sides. It is further submitted that a fresh notice has also been issued to the petitioner on 24.10.2022, wherein the plot numbers have also been mentioned.

3/14 4.

The learned counsel for the B.S.P.T.C.L., Patna has next contended that once the route survey had been undertaken and approved, vide letter no.1758 dated 29.06.2019, issued by the Chief Engineer (Project-I), B.S.P.T.C.L., there is no question of change of alignment of the tower/transmission lines, hence the allegation of the petitioner that the alignment of the transmission towers/lines has been changed in order to benefit some land owners is misconceived and not correct. It is also contended that laying of transmission lines is being done as per the approved route plan and the same is being carried out as per the provisions contained in the Indian Electricity Act, 2003 and the Indian Telegraph Act, 1885.

In this connection, the learned counsel for the respondents has submitted that the site in question was inspected and no houses were found in the corridor of the transmission line, however only few trees and crops were found falling in the way of the transmission line, details whereof are required to be given by the land owners as also they are required to approach the respondents for payment of crop compensation qua the damage that has taken place on account of execution of the aforesaid work of laying of transmission towers/line.

4/14 in the case of Power Grid Corporation of India Limited vs. Century Textiles and Industries Limited and Ors, reported in 2017 (5) SCC 143, paragraphs no.21 to 28 whereof are being reproduced hereinbelow:- "21. It is not in dispute that in exercise of powers under the aforesaid provision, the appropriate Government has conferred the powers of telegraph authority vide Notification dated 24-12-2003 exercisable under the Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central transmission utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central transmission utility and is, therefore, a deemed licensee under the Electricity Act, 2003.

This coupled with the fact that Power Grid is treated as authority under the Telegraph Act, 1885, it acquires all such powers which are vested in a telegraph authority under the provisions of the Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest.

5/14 lines are the most essential requirements for growth and development of any country, economy and the well-being/progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme of the Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines.

22. Powers of the telegraph authority conferred by Sections 10, 15 and 16 of the Telegraph Act, 1885, stand vested in and are enjoyed by the Power Grid. These provisions are reproduced below:

"10. Power for telegraph authority to place and maintain telegraph lines and posts.- The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property:

Provided that- (a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;

(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or

6/14 upon which the telegraph authority places any telegraph line or post; and (c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and (d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.

* * *

15. Disputes between telegraph authority and local authority.-(1) If any dispute arises between the telegraph authority and a local authority in consequence of the local authority refusing the permission referred to in Section 10 clause (c), or prescribing any condition under Section 12, or in consequence of the telegraph authority omitting to comply with a requisition made under Section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the Central

7/14 Government may appoint either generally or specially in this behalf.

(2) An appeal from the determination of the officer so appointed shall lie to the Central Government; and the order of the Central Government shall be final.

16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority. (1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.

(2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Penal Code, 1860.

(3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10 clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.

(4) If any dispute arises as to the persons entitled to receive compensation, or as

8/14 to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.

(5) Every determination of a dispute by a District Judge under sub-section (3) or subsection (4) shall be final: Provided that nothing in this subsection shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."

(emphasis supplied)

23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down

9/14 telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers

24. As Power Grid is given the powers of telegraph authority, Rule 3(1) of the 2006 Rules ceases to apply in the case of Power Grid by virtue of execution clause contained in subrule (4) of Rule 3 which reads as under: "3. (4) Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act."

25. We, thus, have no hesitation in rejecting the argument of the writ petitioner that the impugned action of the Power Grid was contrary to the provisions of the Electricity Act, 2003.

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

10/14 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. Another important factor, which needs repetition at this stage is that no blasting is permissible within 300 m from the 400 kV line (already existing) or the tower structure. Mining of limestone can be taken up by adopting the methods other than use of explosive/blastingwithout damage to the tower foundation/tower structure or the line, which can be accomplished by using jack hammer/pneumatic hammer with compressor so as to avoid any damage to the line or tower.

11/14 note of by the learned Single Judge of the High Court in the judgment dated 11-3-2008 [Century Textiles & Industries Ltd. v. Power Grid Corpn. of India Ltd., WP (C) No. 1909 of 2007, decided on 11-3-2008 (Chh)]. The Division Bench [Century Textiles & Industries Ltd. v. Power Grid Corpn. of India Ltd., Writ Appeal No. 42 of 2008, decided on 2-8- 2010 (Chh)] did not differ with any of these findings.

Accordingly, Civil Appeal No. 10953 of 2016 preferred by the writ petitioner stands dismissed.

27. At this stage, we deal with the direction of the Division Bench regarding compensation payable to the writ petitioner, or for that matter to the State Government. In the first instance, no such claim was laid by the writ petitioner in the writ petition or by the State Government before the High Court.

Furthermore, the High Court could not have given this task to the District Collector, which is contrary to the provisions of Section 16(c) of the Telegraph Act, 1885 which are extended to laying down of electricity lines. As per this provision, such an authority vests with the District Judge.

28. These are sufficient reasons to allow Civil Appeal No. 10951 of 2016 preferred by the Power Grid by setting aside those directions. Ordered accordingly. We make it clear that if the

12/14 writ petitioner feels that it is entitled to any compensation, the appropriate course of action is to file a suit before the District Judge concerned for this purpose. It would also be apt to point out at this stage that the Central Government has framed guidelines dated 15-102015 in this behalf which inter alia provide that the issue of compensation may be resolved having regard to the mode and manner of assessment of compensation as per the said guidelines. Therefore, it would always be open to the writ petitioner to avail the remedy as per the said guidelines."

I have heard the learned counsel for the parties and perused the materials on record as also gone through the judgment rendered by the Hon'ble Apex Court in the case of Century Textiles and Industries Limited and Ors, (supra). This Court finds that the averments made in the counter affidavit filed by the B.S.P.T.C.L., as recorded hereinabove in the preceding paragraphs have not been refuted by the petitioner inasmuch as no rejoinder affidavit has been filed by him, nonetheless this Court finds that the respondent-B.S.P.T.C.L. is even otherwise empowered to eliminate any obstruction in laying down of power transmission lines/towers and as per the provisions contained in the Telegraph Act, 1885, it has

13/14 unobstructed access to lay down telegraph and/or electricity transmission lines under, over, along or across any immovable property, however, it is required to ensure that the same causes as little damage as possible and that full compensation is paid to all the persons interested for any damage sustained by them on account of laying of transmission tower/lines. Thus this Court finds that the petitioner cannot prevent the respondentB.S.P.T.C.L., from erecting the transmission towers/lines, especially in view of the specific stand taken by the respondentB.S.P.T.C.L. to the effect that only few trees and crops are standing over the land in question and no construction of house has yet taken place, which has also not been refuted by the petitioner, as also in absence of any evidence to show that the respondent-B.S.P.T.C.L., has acted in contravention of the provisions contained in the Electricity Act, 2003 and those contained in the Telegraph Act, 1885.

6.

Having regards to facts and circumstances of the case and for the foregoing reasons, I do not find any merit in the present writ petition, hence the same stands dismissed, however with liberty to the petitioner to file a suit before the District Judge concerned, for grant of compensation, in case the petitioner feels that he is entitled to payment of compensation for the

14/14 damages caused to the trees/crops situated over his land. (Mohit Kumar Shah, J) sonal/- AFR/NAFR NAFR CAV DATE NA Uploading Date 24.01.2025 Transmission Date NA