1. In present petition, the petitioners have prayed for below mentioned relief:-
“12(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or any other appropriate writ, order of direction directing the respondents authorities to install the electric poll on the land of the petitioners after the suggestion made by the petitioners.”
2. The petitioners have alleged that the procedure prescribed under the Act, is not followed and the respondent No.3 is not competent to carry on the activity of laying Electricity Transmission Line and that the said respondent's actions are contrary to the provisions under the Act.
3. The respondent No.2 has opposed the petition on various grounds. In its reply affidavit dated 5.10.2012, the respondent No.2 has stated, inter alia, that:-
“(3) At the outset, I state that no right, much less any fundamental right of the petitioners, are violated for which present petition is filed.
(4) The present respondent Power Grid Corporation Ltd., is a Central Transmission Utility as envisaged under Section-38 of the Electricity Act, 2003. being such Central Transmission Utility, it is under obligation to discharge the duties which are envisaged under the Act and as Transmission Utility, similarly, it has right to exercise powers conferred under the Act to discharge such duties. Power Grid Corporation of India is a public sector undertaking and the decisions of route alignment of any transmission line is taken after careful consideration of all the parameters by different departments viz. project execution, engineering, procurement, corporate monitoring etc., and at various levels of authority from site, regional headquarters, corporate centre etc. and not a single mind's decision as in the case of private companies.
(5) The respondent corporation is a Central Transmission Utility and the Government of India has issued notification u/s. 164 of the Electricity Act conferring powers of the Indian Telegraph Act, 1885, with respect to the placing of telegraph lines and posts on the said corporation.
(6) In view of the above referred provisions of the Act and the notification issued by the Government of India, it is submitted that respondent-corporation is undertaking project of laying down electricity line referred in the memorandum of the Special Civil Application in exercise of the powers for discharging public duties as envisaged under the Act.
(7) It is respectfully submitted that so far as the contentions of the petitioners with regard to the loss which they may be sustaining on account of the laying of the line is concerned, the respondent is not acquiring any land of the petitioners and any loss which the petitioners may be sustaining, the compensation admissible under law would be given to them and moreover the alternative route suggested by the petitioners is not feasible technically and from other angles also and that the route map is prepared by the respondent no.2 after undertaking survey of many aspects and detailed study and in the present case, no shift as suggested by the petitioners can be done. Moreover the respondent is not acquiring any land of the petitioners and that it is not true and not admitted that line is laid on the boundary of the petitioners lands than loss to the petitioners can be avoided. It is respectfully submitted that on account of the proposed laying of transmission line and towers in the lands of the petitioners, if any damage is caused to the crop etc. the corporation is liable to pay the compensation admissible under the law and therefore the petition deserves to be quashed and set aside.
(9) In respect of the said project, namely 400KV double circuit Navsari-Vapi-Boiser, 80% of foundation work is completed in Navsari – Vapi portion and on account of the present petition, though there is no prohibitory orders, the corporation is not able to carry on the further work in the fields of the petitioners. It is also respectfully submitted that the entire cost of the 400 kv D/C Navsari – Boisar project is Rs.192 crores.”
4. The objections raised by the petitioners are decided by the Division Bench of this Court in case between Himmatbhai Vallabhbhai Patel v. Chief Engineer (Project) Gujarat Energy Transmission & Ors. [2011(2) GLH 781].
If the petitioners raise objection in the matter of allowing the respondent No.3 to enter the land, then, the procedure prescribed as per order dated 18.7.2012 in LPA No.844 of 2012, i.e. to make application before the competent court of Judicial Magistrate may be followed.
The petitioners have relied on the order dated 18.7.2012 passed in L.P.A.No.844 of 2012 and other connected matters. The electricity company may act in accordance with the directions contained in the said order.
5. Mr. Chaudhary, learned counsel for the petitioners, has submitted that present petition can be disposed of in light of the said order dated 18.7.2012 in L.P.A.No.844 of 2012.
6. Mr. Desai, learned advocate for the respondent No.3, has submitted that after having received compensation, the petitioners can not take any objection. However, despite such facts, if the petitioners raise any objection, then, the respondent No.3 will follow the procedure and directions passed by the Court in the said order dated 18.7.2012 in L.P.A.No.844 of 2012.
7. In this view of the matter, it would be relevant to take into consideration the observations by the Division Bench in the said order dated 18.7.2012 in L.P.A. No.844 of 2012, which read thus:-
“4. Challenge in the appeals filed by the Gujarat Energy Transmission Company Limited (hereinafter referred as “electricity company”) is in connection with the order of the learned Single Judge by which the learned Single Judge while referring the writ petitions to the Larger Bench has continued the order of status quo till the Larger Bench decides the issues referred by the learned Single Judge before the Larger Bench. So far as Letters Patent Appeal Nos.842 and 843 of 2012 are concerned, the same are preferred by the individual land owners on the ground that the learned Single Judge has erred in not granting the interim relief in their favour. The electricity company wanted to erect transmission towers and the same were required to be erected in the lands of the individual land owners. The land owners filed respective petitions before the learned Single Judge challenging the action of the electricity company on the ground that without giving hearing to the concerned land owners and without fixing appropriate compensation, it is not open for the electricity company to install such transmission towers in the part of their lands as it may hamper agricultural activities. On behalf of the electricity company, reliance is placed on the judgment of the Division Bench of this Court in the case of Himmatbhai Vallabhbhai Patel Vs. Chief Engineer (Project), Gujarat Energy Transmission and others, reported in 2011 (2) GLH 781. Relying on the said judgment, it is argued by Mr.Hasurkar that the learned Single Judge was bound by the said judgment and even if the learned Single Judge ultimately decided to refer the issue to the Larger Bench, at least, there was no question of extending status quo as till the judgment of the Division Bench which is binding to the learned Single Judge is over-ruled in a given case by the Larger Bench, the law declared by the Division Bench is binding to the learned Single Judge and there was no question of granting any status quo order.
5. Learned advocates for both the sides have argued the matter on the question of granting or vacating the status quo at some length. However, during the course of hearing since consensus is prevailing between both the sides, it is not necessary to deal with the arguments in detail. In view of consensus prevailing between both the sides, we modify the order of the learned Single Judge by passing the following order.
6. The electricity company may approach the concerned Magistrate under the provisions of the Electricity Act, 2003 in case the action proposed by the electricity company is resisted by the concerned land owners and if the concerned land owners are not cooperating in the matter of handing over the possession of the lands for the purpose of allowing the electricity company to erect transmission towers. If any appropriate application is preferred, concerned Magistrate, after hearing the objections, if any, of the land owners may decide the application immediately without undue delay after hearing the concerned persons in order to comply with the principles of natural justice and the electricity company may accordingly proceed further on the basis of the order that may be passed by the Magistrate in this behalf as per the provisions of the Electricity Act. In case, any party has any grievance in connection with the order passed by the Magistrate, it is open for such party to take further recourse against the said order in accordance with law. The order of the learned Single Judge is accordingly substituted by the aforesaid order. It is clarified that this order is passed only in connection with granting of interim relief and the order of the learned Single Judge is considered to the aforesaid extent of granting interim relief. This Court has not examined the aspect as to whether reference could have been made to the Larger Bench or not as that point has not been pressed into service by Mr.Hasurkar in these appeals. It is further clarified that we have not examined in detail the grievance made by Mr.Hasurkar regarding granting of status quo as ultimately this order is passed in view of consensus prevailing between both the sides. It is needless to say that the electricity company may now proceed further regarding taking further steps in respect of erection of electricity transmission towers, as stated above, by making appropriate application to the concerned Magistrate and to act on the basis of the order passed by the concerned Magistrate.”
7.1 In view of the said observations and in light of the submissions and request made by learned advocate for the contesting parties, present petition is disposed of in terms of the observations and directions made by the Division Bench in para Nos. 4, 5 & 6 of the order dated 18.7.2012.
7.2 The parties shall act in accordance with the said observations and directions.
7.3 It is clarified that in the event of any objection, the respondent company shall follow the same course of action as is directed by the Division Bench in para Nos.4, 5 & 6 of the above referred order. The contentions and objection of both sides are kept open, and the parties may raise all contentions and objections, as are available in law.
With the aforesaid observations, direction and clarification, present petition stands disposed of. Notice is discharged.
Bharat* (K.M. Thaker, J.)