In present petition, the petitioners have prayed for below mentioned relief:- “9(A) be pleased to issue a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction prohibiting the respondents from installing or repairing or laying down any wire without following due process of law and get all the rights decided before the District Magistrate;”
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 private respondent i.e. respondent No.3 has opposed the petition on various grounds. In its reply affidavit dated 6.11.2012, the respondent No.3 has stated, inter alia, that:-
“4.2 With respect to Para 2 of the petition, I deny that the respondent No.3 Company entered into the agricultural fields possessed by the petitioners for installation of electrical line without following due process of law. I state that the petitioner No.5 does not own the land but is merely in possession thereof. I further state that the land possessed by the Petitioner no.5 is owned by one Mr. Pramodbhai Desai. I state that the aforesaid fact is clear from the statement of Mr. Desai dated 26.10.2012 before Respondent no.2. I further state that the dispute with respect to the said land has already been settled by the parties whereby the Petition was filed before this Honourable Court being SCA no.3416 of 2012 which was subsequently disposed as withdrawn by an order dated 01.10.2012. Annexed hereto and marked as Annexure-R-1 (Colly.) are copies of the aforementioned Statement dated 26.10.2012 and order dated 01.10.2012.
4.7 With respect to Para 3.5 of the petition, I deny that the petitioners were not willing and objecting to the said installation of the electric poles. I state that the installation was carried out with the consent of the petitioners. I state that the petitioners have objected to the action of the respondent No.3 Company after accepting the compensation which the petitioners are entitled to under the provisions of law and as mutually agreed. I state that the petitioners have been paid compensation by the respondent No.3 Company, as follows:
Annexed hereto and marked as Annexure R-3 (Colly.) are the copies of the receipts issued by the petitioners for the payment of compensation by respondent no.3.
4.12 With respect to para 4(a) of the Petition, I deny that the Respondent no.3 has given a go bye to the route approved by the Appropriate authority. I deny that the installation of towers by the Respondent no.3 and 4 in the agricultural fields is violative of the Article 14 of the Constitution of India.
4.13 With respect to para 4(b) of the Petition, I state that all the Petitioners accepted the compensation amount without any objection; as awarded to them in accordance with law by the Respondent no.3 Company.
4.16 With respect to para 4(e) of the Petition, I deny that the Respondent no.3 and 4 are supposed to approach the Magistrate for reinstallation of the electric lines. I reiterate that the Petitioners shall approach District Magistrate in event of dispute of the compensation amount as per the provisions of the Act as stated above.”
3.1 What emerges from the said affidavit by the respondent No.3 is that, the petitioner No.5 does not own the land, but he seems to be merely in possession of the land. It also emerges from the affidavit that the respondent no.3 has paid compensation to the petitioners. It is another matter that the petitioners may have dissatisfaction or dispute regarding the quantification of the amount paid towards compensation, however, if the petitioners have already received and accepted the compensation, it, prima facie, appears that the objections may not be justified. However, the said aspect can be examined by the learned Magistrate, if and when any proceedings are taken out in accordance with order dated 18.7.2012 in LPA No.844 of 2012.
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 petitioners will have to follow 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.
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 should act in accordance with the directions contained in the said order.
5. Mr. Patel, 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. The parties shall act in accordance with the said observations and directions.
7.2 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.
(K.M.Thaker, J.) kdc