Bombay High Court
Yeshwant Hari Gawas And 29 Ors vs Union Of India Thr. Chief Secretary And 7 … on 27 September, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
WP-1407-24__F__.DOC
2024:BHC-GOA:1619-DB
Suchitra
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.1407/2024 (F)
1. Mr. Yeshwant Hari Gawas,
Son of late Shri. Hari Gawas,
70 years of age, R/o. H no. 99,
Pimpal Wada, Amona,
Bicholim - Goa.
2. Shri Sadanand Krishna Gawas,
S/o. late Krishna Gawas,
66 years R/o, H.No: 48/2,
Ambeshiwada, Amona, Bicholim Goa.
3. Shri Milind Anant Gawas
S/o. Anant Gawas, 50 years
in age R/o, H.No: 68-A & B,
Ambeshiwada, Amona, Bicholim Goa,
4. Shri Vijaykumar Vinayak
Parab S/o, Vinayak Yashwant Parab,
33 years in age R/o. H.No: 80/2,
Ambeshiwada, Amona, Bicholim Goa.
5. Shri Tulshidas Mahadev
Gawas S/o Mahadev Gawas,
74 years in age R/o.H.No: 466,
Kalamwada, Amona, Bicholim Goa.
6. Shri Atchut Ravalu Gawas,
S/o Ravalu Gawas, 52 years
in age R/o. H.No: 173,
Kalamwada, Amona, Bicholim Goa.
7. Shri Sandesh Anant Sinari,
S/o Anant Sinari, 43 years age,
R/o H.No: 155/6, Kalam wada,
Amona, Bicholim Goa.
8. Mr. Ajit Laxman Parab,
Son of late Laxman Parab,
54 years of age, R/o.
H no. 524, Kalam Wada
Amona, Bicholim - Goa.
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9. Mr. Keshav Sukdo Gawas,
Son of late Sukdo Gawas,
69 years of age, Indian National,
R/o. H no. 64, Kalam Wada,
Amona, Bicholim - Goa.
10. Mr. Santosh Navaso Gawas,
Son of late Shri. Navaso Gawas,
64 years of age, R/o. H. no. 38,
Ambeshi Wada, Amona,
Bicholim - Goa.
11. Shri Navaso Jaganath Gawas,
S/o Jaganath Gawas, 65 years
in age R/o. H.No: 38,
Ambeshiwada, Amona,
Bicholim Goa.
12. Shri Vasant Krishna Sinari,
S/o Krishna Sinari, 72 age
R/o. H.No: 36, Ambeshiwada,
Amona, Bicholim Goa.
13. Shri Narayan Pundalik Sinari,
S/o Pundalik Sinari, 68 years in age
R/o. H.No: 157, Ambeshiwada,
Amona Bicholim Goa.
14. Shri Bhiva Rama Sinari
S/o Rama Sinari, 75 years in age
R/o Ambeshiwada, Amona,
Bicholim Goa.
15.Shri Chandrakant Betu Gawas
S/o late Betu Gawas, 74 years in age
R/o. H.No: 92, Ambeshiwada,
Amona, Bicholim Goa.
16. Shri Pritesh Pundalik Gawas
S/o, Pundalik Narayan Gawas,
54 years in Age,
R/o. H.No: 73, Ambeshiwada,
Amona Bicholim Goa.
17.Shri Yeshwant Datta Parab
S/o, Datta Parab, 73 years in age
R/o. H.No: 555/A-1, Ambeshiwada,
Amona, Bicholim Goa.
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18. Shri Kantha Krishna Gawas,
S/o, late Krishna Gawas,
74 years in age, R/o. H.No: 53,
Ambeshiwada, Amona,
Bicholim Goa.
19. Shri Deepak Vasant Parab
S/o. Vasant Parab, 59 years
in age R/o, H.No: 113,
Ambeshiwada, Amona,
Bicholim Goa.
20. Shri Dnyaneshwar Harichandra
Sinari S/o, Harichandra Sinari,
59 years in age R/o. H.No 21
Ambeshiwada, Amona,
Bicholim Goa.
21. Shri Anil Mahadev Sinari,
S/o Mahadev Sinari, 59 years
in age R/o. H.No: 403,
Ambeshiwada, Amona,
Bicholim Goa.
22. Shri Anant Murgo Sinari,
S/o Murgo Sinari, 70 years
in age, R/o. H.No:94,
Ambeshiwada, Amona
Bicholim Goa.
23. Shri Puti Jivaba Sinari,
S/o Jivaba Sinari 68 years in age,
R/o. H.No: 126, Ambeshiwada,
Amona, Bicholim Goa.
24. Shri Rama Baglo Gawas,
S/o Balgo Gawas 64 years
in age, R/o. H.No:49-A,
Ambeshiwada, Amona,
Bicholim Goa.
25. Shri Shambha Tukaram
Gawas, S/o Tukaram Gawas
52 years in age, R/o. H.No: 32,
Ambeshiwada, Amona,
Bicholim Goa.
26. Shri Laxmikant Narayan
Gawas, S/o. Narayan Gawas,
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44 years in age R/o.H.No:173,
Pimpalwada, Amona,
Bicholim Goa.
27. Shri Harichandra Pundalik
Sinari S/o. Pundalik Sinari,
74 years in age R/o. H.No:423/1,
Kalamwada, Amona, Bicholim Goa.
28. Shri Amesh Yeshwant Parab,
S/o. Yeshwant Parab, 57 years in age,
R/o. Pimpalwada, Amona,
Bicholim Goa.
29. Shri Devanand Sugun Sinari,
S/o. Sugun Sinari, 58 years in age,
R/o. Pimpalwada, Amona,
Bicholim Goa.
30. Mr. Deepak Shiva Sinari,
Son of late Shri Shiva Sinari,
68 years of age, R/o. Kalam Wada,
Amona, Bicholim - Goa.
... PETITIONERS
Versus
1) Union of India hrough
Chief Secretary New Delhi
2) Central Electricity Authority,
Ministry of Power, New Delhi.
3) he State of Goa, hrough
its Chief Secretary, having
Oice at Secretariat, Porvorim-Goa.
4) he Collector of North Goa
Collectorate Building, Panjim,
Tiswadi- Goa
5) he Deputy Collector of
Bicholim Bicholim-Goa.
6) M/S Goa TAMNAR Transmission
Project Ltd, hrough its Manager
Oice at F1 Mira Corporate Suite,
Main Mathura Road, Ishwar Nagar,
New Delhi.
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7) he Secretary, Village Panchayat
of Amona, Amona, Bicholim Goa.
8) he Main Mamlatdar, Taluka
Bicholim, Bicholim- Goa ... RESPONDENTS
Mr S. D. Padiyar, Senior Advocate with Mr Gaurish Agni, Mr P.
Shirodkar, Mr Pavithran A. V., Ms Akshata Rane and Mr Prasad Kholkar,
Advocates for the Petitioners.
Mr Raviraj Chodankar, Central Government Standing Counsel for
Respondents No.1 and 2.
Mr D. Pangam, Advocate General with Mr S. Priolkar, AGA for
Respondent Nos.3, 4, 5 and 8.
Mr Ashwin Bhobe with Ms A. Fernandes, Advocates for Respondent
No.6.
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
DATE: 27th SEPTEMBER 2024
JUDGMENT:
(Per M. S. KARNIK)
1. Rule. he rule is made returnable forthwith at the request of and
with the consent of the learned counsel for the parties.
2. he petitioner, invoking the jurisdiction of this Court under Articles
226 and 227 of the Constitution of India prays for a declaration that the
Respondent no. 6 i.e. M/s. Goa Tamnar Transmission Project Limited
(GTTPL for short) shall be entitled to carry out the work of establishment
of a Transmission system for “Additional 400 KV feed to the State of Goa
and Additional system for power evacuation from generation projects
pooled at Raigarh (Tamnar) pool strictly along the existing 220 KV
corridor line in Goa State after establishing 400 KV corridor connectivity
between Mapusa and Sangod and 220 KV line between Sangod and
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Xeldem as per the directions contained in the Order dated 07.04.2022
passed by the Hon’ble Supreme Court. Further, a declaration is sought
that the present work carried out by the GTTPL is contrary to the Order
dated 07.04.2022 of the Hon’ble Supreme Court, recommendations of
Central Empowered Committee (CEC) and in the absence of approved
alignment lines is per se illegal, null and void and unlawful. A further
declaration is sought that the GTTPL has no right and is not entitled to
enter into any part of the Petitioners’ properties at Amona Village other
than the existing 220 KV corridor and a further declaration that they are
not entitled to carry out any activity in or interfere with the Petitioners’
properties other than along the existing 220 KV corridor. he petitioners
have prayed for other consequential reliefs.
3. Before we advert to the petitioners’ case, it would be proitable to
right away refer to the observations of the Hon’ble Supreme Court in T.
N. Godavarman hirumulpad v/s. Union of India and Ors. – Writ
Petition(s) (Civil) No.202/1995 dated 07.04.2022 having a material
bearing on the controversy, which reads thus:-
” he GTTPL is a transmission licensee selected through a tarif
based competitive bidding (TBCB) process to establish Transmission
system for a “Additional 400 Kv feed to the State of Goa and
Additional System for power evacuation from generation projects
pooled at Raigarh (Tamnar) Pool on Build, Own, Operate and
Maintain (Boom) basis” (‘Project’ for short).
One of the key transmission elements forming part of the
Project is the loop-in loop-out (LILO) of one circuit of the Narendra
(Existing) Narendra (New) 400 Kv D/C quad line at Xeldem (NNPage 6 of 50
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WP-1407-24__F__.DOCLine for short). he NN Line passes through the States of Karnataka
and Goa.
he Project connects the southern region (Sangod/Xeldem)
with the Northern Goa region (Mapusa) through the NN Line.
By report No.6 of 2021, the CEC has made certain
observations and recommendations relating to the Goa Tamnar
Transmission project for laying of electric lines under the
transmission scheme. CEC was of the opinion that the project
proposed by the GTTPL would be detrimental to the fragile
ecosystem of the Western Ghats.
CEC has examined the permission granted by the Standing
Committee of National Board for wildlife granting approval for the
Project. CEC was of the view that instead of clearing canopy of
virgin forest cover along 10.50 km long corridor with 46 m ROW in
Goa State, the proposed 400 Kv line should be drawn along the
existing 220 Kv corridor line in Goa State after establishing 400 Kv
corridor connectivity between Mapusa and Sangod and 220 Kv line
between Sangod and Xeldem. According to CEC, this course of
action would ensure adequate supply of power to southern Goa
region 100 MW of power now being received from ramagundam
through 220 Kv line is temporarily disrupted during the construction
phase of 400 Kv line between Narendra and Sangod.
CEC further recommended that the project proposal in respect
of Karnataka part should also be suitably amended so as to make use
of 110/220 Kv line corridor which will ensure that the commitment
given by Power Grid and CEA to the Karnataka Government that no
further transmission line shall be laid in the area is not violated. hePage 7 of 50
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WP-1407-24__F__.DOCmodiication that has been proposed by the CEC would be in the
interest of forest and wildlife in the ecologically fragile and
biodiversity in these parts. Finally, CEC recommended that direction
should be given to the Ministry of Power, Government of India, Goa
State Electricity Department and GTTPL to redraw and modify the
alignment of additional 400 Kv line corridor between Narendra
(existing) Sangad (new) in the State of Goa and Karnataka in the
light of the observations and recommendations made in Report 6 of
2021.
I.A. Nos. 9110 of 2022 and 9113 of 2022:
hese Interlocutory applications have been iled by GTTPL
seeking appropriate orders regarding the recommendations made
CEC in Report No. 6 of 2021 by requiring realignment of the loop-
in loop-out (LILO) of one circuit of the Narendra (Existing)
Narendra (New) 400 Kv D/c quad line at Xeldem (NN Line)
including whether they are binding and must be implemented by the
Applicant.
In the alternative, GTTPL also said that the original route
envisaged for the loop-in loop-out (LILO) of one circuit of the
Narendra (Existing) Narendra (New) 400 Kv D/c quad line at
Xeldem (NN Line) without any realignment as recommended in the
Central Empowered Committee’s Report No.6 of 2021 dated
23.04.2021.
Mr. C. U. Singh, learned senior counsel appearing for the
GTTPL submitted that there would be no objection for compliance
of the recommendations made by CEC in its report No.6 of 2021.
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Mr. Prashant Bhushan, learned counsel appearing for the Goa
Foundation also submitted that there can be objection no for the
implementation of the recommendations made by the CEC in
respect of realignment of the transmission line.
After examining the report No.6 and hearing the learned
counsel for the parties, we approve the recommendations made by
CEC in Report No.6 and direct suitable steps to be taken in
accordance with the recommendations made therein. Consequent to
acceptance of the report submitted by CEC, the the
recommendation made by National Board for wildlife dated
07.04.2020 is set aside.
Ms. Srishti Agnihotri, learned counsel appearing for the Goa
Foundation vehemently submitted that hearing of this matter should
not have a bearing on the contempt petition iled by Goa
Foundation in respect of felling of trees by GTTPL for constructing
a sub station. It is made clear that the said contempt petition and the
applications iled by GTTPL shall be decided on their own merits.
I.As and Pending application(s), if any, shall stand disposed of
accordingly.”
4. he facts of the petitioners’ case are as under.
5. he Ministry of Power, Central Electricity Authority by order dated
28.11.2018 conferred powers under Section 164 of the Electricity Act,
2003 (‘Electricity Act’ for short) on the GTTPL for laying overhead lines,
which the Telegraph Authority possess under the Indian Telegraph Act,
1885 (‘Telegraph Act’ for short) subject to the conditions as enumerated in
the said Order dated 28.11.2018. he oice of the Chief Electrical
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Engineer on 14.02.2019 and 30.04.2019 submitted its note as regards
laying of the 400 KV line and the farmers/land owners who would be
afected due to the construction of the proposed transmission line. he
note records that the towers which would now be erected would occupy
considerable space on the ground and causing inconvenience to the people
and limiting the access for use of adjacent land. Similarly, farmers choice of
crop/tree plantation would be restricted for the farms falling below the
conductors (wires) of the transmission lines. he note further records that
in view of scarcity of land in Goa and escalation of land value there was
strong objection from the land owners. It was further recorded that a
suitable solution should be arrived at for paying compensation to the
farmers/land owners who are severely afected due to laying of the 400 KV
line by the Respondent no 6-GTTPL.
6. he Village Panchayat of hivim by letter dated 29.03.2019
addressed to the Secretary, Ministry of Power informed the said
department that the request to issue permission by the Panchayat had been
rejected in view of the resolution dated 28.01.2019 taken by the Panchayat
thereby calling upon the department to obtain permission from the
concerned land owners to take further necessary action in the matter. he
villagers of Gavoi hivim by their objections dated 07.06.2019 addressed
to the Collector, North Goa had also lodged strong objections to the
alignment of the 400 KV line. he objections set out as to how the
proposed transmission line would have adverse impact on the land owners,
ecology, environment, lora and fauna and called upon the authorities to
identify alternate alignment for the transmission line.
7. he Village Panchayat of Surla by its objections dated 26.06.2019
submitted to the Executive Engineer, Electricity Department also objected
to the laying of the 400 KV line through various properties forming part of
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Village Panchayat Surla. It was requested that the existing line of alignment
be altered as the land owners were fully dependent on agricultural activities
from the said lands and they had no other source of income. Objections
were raised by various individuals that they would be deprived of their
livelihood apart from health hazards as a result of the said project.
8. he District Collector, North Goa by order dated 09.09.2020
constituted a Committee for inquiring into the request, inspection and
submission of detailed report for compensation payable to the afected land
owners. hus the villagers, land owners/agriculturists strongly objected for
starting any survey and tree enumeration activities in the Panchayat area of
village Amona since the villagers were not supporting the said project.
9. By communications dated 05.05.2021, 09.08.2021 and dated
21.06.2022 addressed to the concerned Village Panchayats, the GTTPL
informed the Panchayat that they were vested with powers under Section
164 of the Electricity Act and had powers to lay towers and transmission
lines over private land without the consent of the owner or occupier of the
land. he Deputy Conservator of Forest issued an order dated 22.09.2021
permitting felling of Six Hundred and Sixty-hree (663) trees for
construction of the 400KV line by Respondent no 6-GTTPL. Twenty-
two (22) trees from the jurisdiction of Village Panchayat of Amona were to
be cut for the purpose of laying of the said lines. Objections were raised by
the villagers for felling of the trees and it was again emphasized that the
said project is detrimental to the interest of the villagers and therefore
should not proceed. Under the Right to Information Act (RTI Act for
short) the Collector, North Goa informed that the oice of the Collector
had not received any proposal for acquisition of land from the GTTPL.
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10. he Central Empowered Committee (CEC) by report no.6/2021
made certain observations relating to the projects for laying of 400 KV
electric lines under the said transmission scheme to the state of Goa.
According to the petitioners the CEC conducted a study and was of the
opinion that the project proposed would not be in the best interest of the
of the Ecology and in fact would be detrimental to the fragile eco-system of
the western ghats having regard to the manner in which the scheme was
proposed to be executed.
11. Mr Padiyar, learned Senior Advocate for the petitioners submitted
that the present alignment of the project is contrary to the observations of
the Supreme Court in T. N. Godavarman hirumulpad (supra) and the
CEC report. He submitted that the project contravenes the provisions of
the Electricity Act and the Telegraph Act. Learned Senior Advocate also
submitted that the petitioners would be deprived of their source of
livelihood as apart from losing valuable parcels of land for setting up of
towers, there would be a serious impediment in the user of the land along
the corridor over which the transmission lines are to pass. It is submitted
that there is no proper survey or plans prepared and the corridor as well as
the site at which the towers are to be located is identiied in an arbitrary
manner.
12. Mr Padiyar, learned Senior Advocate for the petitioners heavily relied
upon the CEC report and laid emphasis on paragraphs 46, 47, 48, 49, 50,
53, 59, 60, 64, 65, 66, 67 and 74 of the report.
13. It is further submitted that no fresh alignment plan/layout has been
drawn pursuant to the order of Supreme Court and no fresh approvals are
obtained from concerned authorities including Central Electric Authority.
he New KV line is following an alignment in complete deviation and
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contrary to the alignment as directed by the Supreme Court. Petitioner’s
properties are not along the corridor of the existing 220 KV line, while
now the petitioner’s properties are subject to the new proposed lines. he
petitioners’ objections are not considered in the proper perspective and all
steps are in violation of principles of natural justice and fair play.
14. According to the learned Senior Advocate the District Magistrate was
required to inquire whether the works proposed were in accordance with
the alignment plan drawn/layout in accordance with the Supreme Court
order before granting any permissions. he power under Section 164 of
the Electricity Act is required to be read only as to a “power of user” as
conferred on the authorities under Telegraph Act. Respondent no.4 i.e.
the Collector North Goa in exercise of its powers under Section 16(4) of
the Telegraph Act directed the GTTPL to exercise powers under Section
10(d) and pay full compensation with respect to the properties mentioned
in the said order. he construction of the project is allowed without
paying compensation to the owners of the properties. he petitioners have
not been notiied as regards assessment of damage and payment of
compensation. On the contrary the GTTPL has started construction. he
GTTPL being the user of the property under Section 10(b) of the
Telegraph Act cannot commence construction of the project without
paying compensation to the petitioners as contemplated under section
10(d). he act of GTTPL entering into the petitioners’ land is an act of
trespass in violation of statutory provisions and in complete breach of
Supreme Court’s order.
15. Learned Senior Advocate Mr Padiyar was at pains to submit that the
report of the CEC makes it clear that the same is in respect of the entire
project. No plans/layout as contemplated under the Supreme Court’s
order are put forth and that the works are being carried out in violation of
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the approved plans in deviation thereof. he NOC issued by the Goa
Coastal Zone Management Authority (GCZMA) mandates that in the
event of change in project proile a fresh reference shall be made to
GCZMA as the GTTPL has deviated from the plans. Without any revised
plans/approvals from the Forest Department and the GCZMA, works
could not have proceeded. he location of towers has been changed which
is in complete breach of the conditions of NOC from CRZ.
16. Mr Padiyar, learned Senior Advocate for the petitioners relied upon
the following judicial pronouncements in support of his submissions:
1. Gujrat State Energy Transmission Corporation Limited V/s
Ratilal Maganji Brahmbhatt (Barot) – 2021 AIR CC 1044 (GUJ);
2. Power Grid Corporation of India Ltd. V/s Century Textiles and
Industries Limited and Others – 2017 (5) SCC 143;
3. Dilip Singh Chauhan and Others V/s Gujrath Urja Vikas
Nigam Limited and Others – 2013 (34) GHJ 496, High Court of
Gujrat.
17. Learned Advocate General Mr Pangam and Mr Bhobe, learned
counsel for the GTTPL submitted that the order passed by the Hon’ble
Supreme Court and the report of the CEC makes it clear that the
observations therein are in the context of the transmission line which was
to pass through the forest area and does not cover the 440 KV line which is
the subject matter of the present petition. Mr Pangam and Mr Bhobe
relied upon the following judicial pronouncements in support of their
submissions:
1. Vivek Brajendra Singh V/s State Government Of Maharashtra
[2012(4) MH.L.J 625]
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2. Power Grid Corpn. Of India Lid. V/s Century Textiles &
Industries Ltd. [(2017) 5 Supreme Court Cases 143]
3. Century Rayon Ltd.V/s. Ivp Ltd – [(2021) 20 Supreme Court
Cases 758]
4. Bharat Singh And Others V/s. State Of Haryana – [(1988) 4
Supreme Court Cases 534]
5. State Of Madhya Pradesh V/s. Narmada Bachao Andolan [(2011)
7 Supreme Court Cases 639]
6. Ajay Munjal Memorial Trust And Ors. V/s. Power Grid
Corporation Of India Ltd. And Ors. [2007 SCC OnLine Jhar 479]
18. We have heard learned counsel for the parties. We have perused the
memo of petition, aidavit in reply and documents on record.
19. he rival contentions now fall for our determination. A careful
perusal of the averments in the petition and reliefs prayed for by the
petitioners reveal that the entire case of the petitioners is based on the
premise that the work of the project is carried out by the GTTPL contrary
to the Supreme Court’s order in T. N. Godavarman hirumulpad (supra)
and recommendations of the Central Empowered Committee.
20. he properties of the petitioners afected as a result of the project are
situated in Village Amona. he Notiication dated 28.11.2018 issued by
the Central Electric Authority, Ministry of Power, Government of India in
exercise of powers conferred by Section 164 of the Electricity Act speciies
‘Xeldem-Mapusa 400 KV D/c (Quad) line’ as a part of the scope of the
work. he Notiication mentions the overhead lines which will pass
through over, around and between various villages, towns and cities also
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includes Village ‘Amona’. he Notiication further mentions that GTTPL
applied to the Ministry of Power for authorization under Section 164 of
the Electricity Act for the scheme. he Central Electricity Authority under
Section 164 of the Electricity Act conferred all powers to GTTPL for
laying the overhead lines, which the telegraph authority possess under the
Indian Telegraph Act, with respect to the placing of telegraph lines and
posts for the purposes of a telegraph established or maintained by
Government or to be so established or maintained subject to the following
among other terms and conditions viz., the applicant shall have to seek the
consent of the concerned authorities i.e. local bodies, railways, national
highways, State highways etc. before erection of proposed lines and, the
approval is subject to compliance of the requirement of the provisions of
the Electricity Act and rules made thereunder. A careful perusal of the
recommendations of the CEC reveals that the meeting held on 30.11.2015
considered and deliberated on several alternatives all of which involved
crossing of western Ghats (forest area). he relevant Paras of the report of
the CEC dated 23.04.2021 have a material bearing in this case and are
extracted as under:
“46. he Goa-Tamnar Transmission Project (GTTP) is
part of National Grid Development and is proposed to be
implemented through the Special Purpose Vehicle Goa-
Tamnar Transmission Project Private Limited, (GTTPL),
New Delhi (hereinafter referred to as GTTPL). he
Project involves the laying of Additional 400 Kv feed to
Goa and Additional System for Power Evacuation from
Generation Projects pooled at Raigarh (Tamnar) Pool so
as to supply the projected power requirement of Goa with
reliability. Presently demand of Goa is mainly catered
through Mapusa 3X315 Double Circuit (D/c) line
400/220 Kv substation which gets feed from Kolhapur
400 Kv substation through a 400 Kv D/c line. Goa system
is also connected with Maharashtra and Karnataka
through 220 Kv lines.
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47. he 38th Meeting of Standing Committee on Power
System Planning in Western Region held on 17.07.2015
at New Delhi discussed the provision for a new 400 Kv
substation in Goa at Xeldem along with its inter
connections with the Inter-State Transmission System and
agreed to the same. he 39th Meeting of Standing
Committee on Power System Planning in Western Region
held on 30.11.2015 considered and deliberated on several
alternatives all of which involved crossing of Western
Ghats (forest area). he following transmission system was
discussed and recommended in the 39th and 40th SCM
of Western Region held on 30.11.2015 and 01.06.2016
respectively and 39th and 40th SCM of Southern Region
held on 28-29.12.2015 and 19.11.2016 respectively:
i. LILO of one ckt of Narendra (existing) – Narendra
(New) 400 Kv D/c (Quadline) at Xeldem. Approximately
10 Km length passes through Dandeli Wildlife Sanctuary;
ii. Xeldem-Mapusa 400 Kv D/c (Quadline);
iii. Xeldem (New) – Xeldem (existing) 220 Kv HT LS
D/c line; and
iv. Dharamjayagarh Pool Sections “B” – Raigarh
(Tamnar) pool 765 Kv D/c line.
he Scheme has been recommended for implementation
in the 36th Meeting of the Empowered Committee on
Transmission held on 26.07.2016.
48. he GTTP is part of the 400 Kv D/C Narendra
(Karnataka) – Xeldem (Goa) Transmission Line which
starts at Narendra Village in Dharwad District, Karnataka
and Terminates at Xeldem in Goa. he overhead lines
covered under the GTTP will pass through over, around
and between various villages, towns and cities as listed in
Gazette Notiication dated 28.11.2018 of Ministry of
Power, Central Electricity Authority (Annexure R-6 of
Aidavit dated 02.08.2020 iled by Respondent M/s Goa-
Tamnar Transmission Project Private Limited). he
estimated cost of the Project is Rs.58.2 lakhs. A copy of
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the Notiication dated 28.11.2018 of the Ministry of
Power is enclosed as ANNEXURE-R-10 to this Report.
49. he Respondent GTTPL was granted approval under
section 68 (1) of the Electricity Act, 2003 for the
Transmission Project. he Central Electricity Regulatory
Commission granted GTTPL the Transmission licence for
the Project on Build, Own, Operate and Maintain
(BOOM) basis. hereafter on 28.11.2018 the GTTPL
was granted authorization by the Central Electricity
Authority (CEA) under section 164 of the Electricity Act,
2003 for laying of electric lines under the Project. he
Project, apart from enhancing the current power
transmission capacity and reliability will also ensure power
security to the State of Goa with provision for future
expansion to meet the growing energy needs and projected
power requirements of the State. Since Goa is already well
connected with the Western Region grid at 400 Kv
(through Kolhapur – Mapusa 400 Kv D/c lines and 220
Kv lines) and since Goa has got share of 100 MW in the
Ramagundam STPS which is located in Southern Region
it was found advantageous to have the second 400 Kv
connection from Southern Region side.
50. According to the project proponents (GTTPL) out of
the total 93.931 km length of the Transmission Project
16.331 kms involving 75.122 ha of land is in the State of
Goa. Out of 16 kms, a stretch of 2.51 km falls in
Bhagwan Mahaveer Wildlife Sanctuary (BMWLS).
Further out of 75.122 ha of land an extent of 48.3 ha is
forest land and remaining 26.822 ha is non-forest land.
Out of 48.3 ha of forest land having 15772 trees an extent
of 11.54 ha falls in Protected Area BMWLS, 19.61 ha is
Reserve Forest, 2.38ha is unclassiied forest and 14.77 ha
is private forest. In the State of Goa there are a total of 41
transmission towers out of which 16 towers are in Private
Land, 6 towers are in BMWLS, 13 towers are in notiied
government forests and 6 towers are in private forests. he
entire length of 16.331 km corridor in Goa State has been
proposed along new alignment.
51. In addition in the State of Karnataka a total length of
77.67 km of the Transmission line is to be drawn under
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this project. Out of 77.67 kms a stretch of 6.64 km falls in
Dandeli Wildlife Sanctuary (DWLS), 29.272 Kms. passes
through Government Forest and 2.614 kms. passes
through Private/Deemed Forests (total 38.497 kms). Total
extent of forest land involved along this 38.497 kms. is
177.09 ha. Out of 177.091 ha. of forest land an extent of
30.412 ha falls in Protected Area of DWLS. 134.655 ha is
government forest land and 12.024 ha is Private forest /
deemed forest land. An estimated 62289 trees are required
to be felled in the 46m wide ROW along 38.497 km
forest area in Karnataka State. he Karnataka Forest
Department is yet to seek clearance under FC Act 1980
from MOEF&CC for diversion of forest land for this
project of laying the 400 Kv D/c line passing through the
State Forests. Similarly the State Wildlife Board and the
Standing Committee of National Board for Wildlife is yet
to make its recommendations under Wild Life
(Protection) Act, 1972 in respect of the Karnataka portion
of the proposal submitted by GTTPL. A copy of the
statement showing the division wise details of forest area
and trees with number of towers is enclosed as
ANNEXURE R-11 to this Report.
52. he Transmission Project intends to lay over head
cables with about 400 metres in span between two towers
inside the BMWLS. he height of the towers inside the
sanctuary will vary from 45 m (150 feet) to 54m (177
feet). he clearance between the ground and the sag
portion of the 400Kv high voltage line prescribed under
the Electricity Act is 29.44 feet.
53. Land measuring a maximum of 20 metres by 20
metres is required for the construction of foundation
tower footing of each tower. herefore a total of about
0.25 ha of land will be required for the construction of
tower footing of all the towers. Since the felling will take
place mainly at the location of tower footing and
considering that maximum density of 35 to 40 trees will
be cut at each of the tower locations where the towers are
proposed to be located a total of about 250 trees will
require to be felled for constructing the 6 towers in Goa.
Further, to maintain the ground clearance about 1000
trees (revised from original 4146 trees) will be required to
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be cut. his includes the 250 trees to be felled for tower
footing. Since trees falling in the corridor of the
transmission line mostly fall below transmission line they
may be required to be trimmed or lopped from time to
time and not felled since the height of the towers inside
the BMWLS will vary from 45 meters (150 feet) to 54
meters (177 feet) and under the statute a minimum
ground clearance of 29.49 feet is mandatory for 400 Kv
transmission line. he transmission line when constructed
will not be afecting the movement of wildlife. Also
because of long span (400 meters) between two towers the
natural regeneration will be allowed to come up after the
stringing work on the towers is completed excepting in the
0.25 ha. area required for the 6 tower footings. he
Transmission Project being an overhead transmission line
does not bifurcate the forest into diferent parts except for
arboreal animals. Respondent GTTPL has denied that a
large number of trees have intentionally been excluded
from enumeration so as to minimize perception of
environmental damage. he transmission line projects are
environmentally friendly and are excluded from
environment impact assessment studies.
54. Biodiversity study is required when proposed diversion
of protected area is above 50 ha. Since in the instant case
only 11.54 ha falls in the Protected area there was no
requirement of conducting any Bio-Diversity Impact
Assessment (BIA) and drawing up Biodiversity
Management Plan (BMP) yet the Respondent GTTPS got
the BIA and BMP studies conducted by an international
agency Environmental Resource Management (ERM).
his agency prepared the BIA Report and drew up BMP
highlighting mitigation measures to be implemented by
Respondent GTTPS so as to minimize the environmental
impact. It was observed that the proposed Project did not
have much of impact on the wildlife habitat and bio-
diversity loss. he impact of the Transmission Project on
the environment is temporary and minor. Further,
changes, if any, in the land use during the construction
period will be localised and recoverable. he Report of the
ERM was duly submitted to the Wildlife Warden, North
Goa and subsequently to the State Wildlife Board.
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55. he proposed transmission line passes through North
Goa Forest Division and Bhagwan Mahaveer Wildlife
Sanctuary and forest and wildlife area involved is said to
be the minimal and unavoidable.
56. According to Goa State Oicials while inalising the
route, Respondent GTTPL had also explored the
possibility of avoiding protected areas. However, no better
corridor with minimum impact on wildlife could be
found because on the one side there is the Mollem
National Park while on the other side there is the Mhadei
Wildlife Sanctuary. he present route was ultimately
agreed upon and inalised after assessment of the three
possible routes by the State Forest Department and after
ensuring minimal impact on environment. he Statement
showing the alternate routes examined by GTTPL is
enclosed as ANNEXURE R-12 to this Report.
57. At the meeting of State Board for Wildlife held on
2.12.2019 the State Board recommended the proposal
relating to the Transmission Project to the National Board
for Wildlife with the direction to the Respondent GTTPL
to minimize and restrict cutting of trees within the
protected area from the initially enumerated 4146 trees
and 985 cane clumps to below 1000 trees in the entire 46
meter wide corridor of the transmission line and which
was agreed to by the Respondent GTTPL. he State
Board further directed the GTTPL to deposit 3% of the
Project cost to the Goa State Forest Department for
utilizing this money for eco-restoration, prey
augmentation, reducing public dependence on forests and
promoting traditional livelihood in and around the
Protect area.
58. he Standing Committee of National Board for
Wildlife (SC NBWL), at its meeting held on 07.04.2020,
recommended the proposal in respect of Goa State subject
to Respondent GTTPL complying with all the conditions
imposed by the State Chief Wildlife Warden. he SC
NBWL further recommended that the Respondent
GTTPL should submit annual compliance certiicate on
the stipulated conditions to the State Chief Wildlife
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Warden who in turn shall submit an annual compliance
certiicate to the Government of India.
59. Under the Forest (Conservation) Act, 1980 approval
of MoEF&CC will have to be taken for diversion of forest
land for non-forest use before construction of transmission
line commences in forest area. he Regional Empowered
Committee of the Regional Oice (SZ) of the
MOEF&CC, Bangalore has examined the proposal for
diversion of 48-30 ha. of forest land for construction of
LILO of one CKF of Narendra (existing) to Narendra
(New) 400 Kv D/C quad at Xeldem Transmission Line
(North Division 36.76 ha. Wildlife & Eco Tourism
(North) 11.54 ha.) in favour of M/s. Goa Tanmar
Transmission Project Ltd. in its meeting held on
23.2.2021 and recommended that
“REC examined the proposal and heard the
presentation made by the User Agency. REC noted that
there is an already existing 110KV defunct line to
Narendra and therefore desired that State Government
should explore the possibility of alignment of the
proposed 400 KV D/C line in the same corridor. REC
also noted that the User Agency has also submitted a
proposal for diversion of 177.091 ha. of forest land in
Dharwad, Haliyal, Dandeli Wildlife (Kali Tiger
Reserve) and Belagavi Divisions for laying of Goa-
Tanmar 400 KV D/C Quad Transmission Line (LILO
Project) in the State of Karnataka, which is under
process at the State Government level for Forest and
Wildlife Clearance. As per the guidelines issued under
FC Act, any proposal for linear project such as roads,
railway line, transmission line etc. needs to be processed
in their entirety for comprehensive assessment of
requirement of forest land and consequences if approval
of any forest land is not granted. herefore, REC
decided to consider both the proposals together after
receipt of proposal for Karnataka portion.”
A copy of the minutes of the meeting of the REC,
Bangalore held on 23.2.2021 is enclosed as
ANNEXURE R-13 to this Report.
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60. However it is seen that the Regional Oice of
MOEF&CC vide letter dated 19.11.2020 has given
concurrence for diversion of 69.41 ha. forest land in
North Goa forest division for construction of 400 KV
D/C Xeldem -Mapusa Transmission Line in favour of
M/s. GTTPL. Also concurrence of MOEF&CC was
issued vide letter dated 1.1.2021 for additional 28.24 ha.
of forest land for construction of Xeldem to Xeldem
(existing) 220 KV HTLS/C transmission line under
North and South Goa Divisions in favour of M/s.
GTTPL. It is to be noted that these two proposals for
which concurrence was given by MOEF&CC are also part
of the same project of Additional 400 KV feed to GOA
approved by CEA. A copy each of the letter dated
19.11.2020 and 1.1.2021 of MoEF&CC, Regional
Oice, Bangalore is enclosed as ANNEXURE R-14
(Colly.) to this Report.”
21. he observation and recommendations of the CEC’s report are as
follows:-
“64. Additional 400 KV Feed to Goa has been approved
vide notiication dated 28.11.2018 by Central Electricity
Authority with the following scope of work;
i. LILO of one ckt of Narendra (existing) – Narendra
(new) 400 Kv D/c quadline at Xeldem. Approxemately 10
km length passes through Dandeli Wildlife Sanctuary.
ii. Xeldem – Mapusa 400 Kv D/c quadline
iii. Xeldem (New) – Xeldem (existing) 220 Kv HTLS D/c
line
iv. Dharamjaygarh Pool Section B – Raigarh (Tamnar)
pool 765 Kv D/c line.
65. here is an inbuilt provision in the approved scheme
to connect southern region (Sangod / Xeldem) with
Northern Goa region (Mapusa) with a 400 Kv D/c
quadline. his 400 Kv line has the capacity to carry 1200
MW of power from Mapusa to Sangod as claimed in the
cost beneit analysis presented by the project proponents
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in the Forest Clearance proposal. Further distribution of
power in the southern region are planned from Sangod
400 Kv and 220 Kv substation. A copy of the map of Goa
state showing the spatial distribution of project elements is
enclosed as ANNEXURE R-15 of this Report.
66. It is seen from the minutes of the 39th meeting of the
Standing committee on power system planning in
Western region held on 30.11.2015 that while considering
the option of additional feed to Goa through the
Kolhapur (PG) – Mapusa – Xeldem (Sangod) 400 Kv D/c
Quad Line without going for a new corridor from
Narendra (existing) to Sangod / Xeldom the Chief
Engineer, Goa Electricty Department (GED) in the said
meeting stated that Goa is already well connected with the
Western region Grid at 400 Kv D/c line and 220 Kv lines.
It is desirable to have the second 400 Kv connectivity
through southern side. Further, Goa has got share of 100
MW in the Ramagundan, STPS which is located in
Southern Region. herefore Narendra (existing) Xeldem
400 Kv D/c Quad Line may be agreed as second 400 Kv
feed to Goa. He further stated that the existing Supa –
Ponda 110 Kv D/c line at present is not in use and the
line corridor could be released for implementation of
Narendra (existing) – Xeldem 400 Kv D/c line in their
territory state, if required.
67. It has also been stated in the Minutes that with the
implementation of the planned WR-SR interconnections,
the existing issue of limited ATC (Available Transmission
Capacity) between WR-SR corridors may not be a
limiting factor for export of power from WR to SR.
From the above the following is clear and becomes
possible:
i) Flow of 1200 MW power from WR (Mapusa) to SR
(Sangod / Xeldem) and vice versa.
ii) One of the consideration for approving the present
Southern Region Corridor is that 100 MW power is also
to be carried by the new 400 Kv line from Karnataka.
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iii) In the event of 100 MW power from Ramagundam is
carried by 400 Kv line the existing 220 Kv line between
Ambevadi (Karnataka) and Ponda (Goa) will become
defunct and the same line corridor is available for drawing
400 Kv line in which case the 220 Kv line has to be
dismantled on commissioning of new 400 Kv corridor.
68. In the above context the following recordings in the
Minutes of the 39th meeting of the Standing Committee
on Power System Planning in Western Region held on
30.11.2015 is signiicant:
“Narendra (existing) – Xeldem 400 Kv D/c line would
pass through forest area of Western Ghats. In the past
also during forest clearance process of Kaiga-
Narendra 400 Kv D/c line a lot of resistance from
various activists and NGO’s was faced. he forest
clearance was recommended by Karnataka
Government in 2002 only after joint conirmation
from Power Grid and CEA that no further
transmission line shall be laid in the area. herefore
laying of Narendra (existing) – Xeldem 400 Kv D/c
line may be resisted by activist / NGO’s and obtaining
forest clearance and actual implementation of the line
may be delayed as in case of Mysore – Kozhikode –
400 Kv D/c line.”
69. he Member, CEA has suggested that amongst the
alternatives suggested, the alternative involving minimum
forest clearance problems may be inalised as second 400
Kv feed to Goa.
70. he Committee was aware of the importance attached
to forest clearances in the Western Ghat region. However
it missed to examine the best alternative of replacement of
the existing 220 Kv line with 400 Kv line, which is an
existing line and is passing through the already cleared
forest cover in the National Park and Wildlife Sanctuaries,
to avoid fresh clearing of forest canopy for drawing the
proposed 400 Kv line. he Chief Engineer (GED) Goa in
the meeting had infact made out a case for the 400 Kv line
from southern side since 100 MW is already being carried
from the Southern Region. A copy of the Minutes of the
39th Meeting of the Standing Committee on Power
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System Planning in Western Region held on 30.11.2015
is enclosed as ANNEXURE R-16 to this Report.
71. he alignment of the second 400 Kv line to Goa, even
if it is taken along the new corridor as proposed in the
application for forest and wildlife clearance passing
through virgin forest areas, on its commissioning the
existing 110 Kv (defunct) and 220 Kv lines drawn
between Karnataka and Goa will require to be dismantled
as the 100 MW power can be carried through the new
400 Kv line having 1200 MW capacity. Taking into
account the total available power supply lines and the peak
power demand of Goa State (presently 670 MW) in the
forseable future there will be no justiication to continue
with 110 Kv and 220 Kv lines between Karnataka and
Goa.
72. he proposed route along 110 Kv line has not been
recommended by DCF (Wildlife& ECO Tourism)
because it passes through dense evergreen forest patch of
Sanctuary and National Park. Also it is an ideal habitat for
Gaur with lush grasses growing on rocky escarpments.
hese two statements are somewhat contradictory because
if it is dense evergreen forest then in that case there cannot
be open spaces and grass on ground. he fact however is
that this alignment has secondary growth of vegetation
along the defunct line and not dense virgin forest. Also
Herbivore density is always higher in open forest. he
openings created for laying the 400 Kv line will not take
way the rocky escarpment and grassy patches. Instead it
may create more grassy habitat underneath the 400 Kv
line with 46 meter wider corridor. he higher tower
heights and higher minimum clearance available will have
lesser impact on wildlife. On the other hand if we were to
go along the new proposed corridor through virgin forest
it is certain to imbalance the equilibrium of the existing
climax forest ecosystem. Further while discarding the 110
Kv line the Dy. Conservator of Forest has not considered
the scope of replacement of 220 Kv Line which line runs
almost parallel to the defunct 110 Kv line and which has
35 meter wide corridor and the corridor is free of tree
growth. Copy of the letter dated 10.07.2018 of Dy.
Conservator of Forest, Wildlife and ECO – Tourism (N)
is enclosed as ANNEXURE R-17 to this Report. A copy
of the line overview of 220 / 110 Kv line presented by
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GTTPL and photographs of the existing 110/220 Kv line
and the proposed site for 400/220 Kv substation at
Sangod are enclosed as ANNEXURE R-18 (Colly.) to this
Report.
73. It is important to note that a stretch of 2.5 Km
length of the defunct 110 Kv corridor in Karnataka
starting from Goa – Karnataka inter State border is
proposed to be used for drawing new 400 Kv line and
existing 8 towers of 110 Kv line will be replaced by equal
number of towers of 400 Kv in this stretch of 2.5 Kms.
he remaining corridor of the proposed 400 Kv line will
pass through virgin forest land in Karnataka also. he SC
NBWL has recommended the project proposal of
GTTPL in respect of Goa State even before receiving the
proposal from the State of Karnataka which is a clear
violation of the guidelines issued by MOEF&CC in this
regard. he SC NBWL does not seen to have examined
the alternative available in its entirety within the State of
Goa so as to ensure that there is judicious use of the
available power transmission lines passing across the
fragile and bio diversity rich ecosystem of the Western
Ghats.”
22. In Para 74, the CEC recommended thus:-
“74. Keeping in view the detailed discussion above CEC is
of the considered view that instead of clearing canopy of
virgin forest cover along 10.50 km long corridor with 46m
ROW in Goa State the proposed 400 Kv line should be
drawn along the existing 220 Kv corridor line in Goa
State after establishing 400 Kv corridor connectivity
between Mapusa and Sangod and 220 Kv line between
Sangod and Xeldem. his activity in fact is also part of the
present project approved by CEA. his course of action
will ensure adequate supply of power to the Southern Goa
Region when the 100 MW of power now being received
from Ramagundam through 220 Kv line is temporarily
disrupted during the construction phase of 400 Kv line
between Narendra and Sangod. Accordingly the project
proposal in respect of Karnataka part will require to be
suitably amended so as to make use of the existing 110 /
220 Kv line Corridor. his will also ensure that the
commitment given by Power Grid and CEA to the
Karnataka Government that no further transmission line
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all this modiication in the proposal will help in saving the
precious forest cover and wildlife in the ecologically fragile
and biodiversity rich Western Ghats.”
23. A careful perusal of the order passed by the Supreme Court in T. N.
Godavarman hirumulpad (supra) and recommendations and observations
of the CEC will reveal that these recommendations are in the context of
forest area and cover forest and wildlife in the ecologically fragile and
biodiversity rich western Ghats of Goa. In light of the observations and
recommendations of the CEC, we do not ind any merit in the contentions
of learned Senior Advocate for the petitioners that the proposed 400 KV
line should be drawn along the existing 220 KV corridor line between
Mapusa and Sangod stretch and 220 KV line between Sangod and Xeldem
stretch. his course of action was adopted to ensure adequate supply of
power to the southern Goa region when the 100 MW of power now being
received from Ramagundam through 220 KV line is temporarily disrupted
during the construction phase of 400 KV line between Narendra and
Sangod. he observations are thus made for protecting forest cover and
wildlife in the ecologically fragile and biodiversity rich western Ghats.
24. A perusal of the order of the Hon’ble Supreme Court reveals that the
aforesaid report of the CEC and the observations and recommendations
made therein are referred to. In the context of such observations and
recommendations, heir Lordships observed :
” CEC was of the opinion that the project proposed by the
GTTPL would be detrimental to the fragile ecosystem of the
Western Ghats.
CEC has examined the permission granted by the Standing
Committee of National Board for wildlife granting approval for thePage 28 of 50
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WP-1407-24__F__.DOCProject. CEC was of the view that instead of clearing canopy of
virgin forest cover along 10.50 km long corridor with 46 m ROW in
Goa State, the proposed 400 Kv line should be drawn along the
existing 220 Kv corridor line in Goa State after establishing 400 Kv
corridor connectivity between Mapusa and Sangod and 220 Kv line
between Sangod and Xeldem.”
25. his observation was made by heir Lordships as according to the
CEC, this course of action would ensure adequate supply of power to
southern Goa region 100 MW of power now being received from
Ramagundam through 220 KV line is temporarily disrupted during the
construction phase of 400 KV line between Narendra and Sangod. hus
the Supreme Court’s order in our humble opinion is in the context of
safeguarding the interest of forest and wild life in the ecologically fragile
and biodiversity in these parts.
26. Finally, CEC recommended that direction should be given to the
Ministry of Power, Government of India, Goa State Electricity
Department and GTTPL to redraw and modify the alignment of
additional 400 KV line corridor between Narendra (existing) and Sangad
(new) in the State of Goa and Karnataka in the light of the observations
and recommendations made in the report of the CEC. Accordingly, after
examining the report of the CEC, the Hon’ble Supreme Court approved
the recommendations made by the CEC and directed that suitable steps be
taken in accordance with the recommendations made therein. It is in this
context that the recommendations made by the National Board for
Wildlife dated 07.04.2020 was set aside. he order passed by the Hon’ble
Supreme Court and the report of the CEC therefore is not in the context
of 400 KV line that is passing through Village Amona which is the subject
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matter of the present petition or in the context of the 400 KV line which
was proposed between Xeldem to Mapusa.
27. he contention of the learned Senior Advocate for the petitioners
that in view of the order of the Hon’ble Supreme Court and the report of
the CEC, the alignment of the 400 KV line between Xeldem to Mapusa
has to be along the 200 KV line which is existing is without any merit.
he petition as iled proceeds on the footing that the proposed alignment
of the 400 KV line between Xeldem to Mapusa is contrary to the order
passed by the Hon’ble Supreme Court and the recommendations of the
CEC deserves to be rejected. In this view of the matter we need not have
proceeded any further for there are no speciic pleadings raised in respect of
the other contentions raised by the learned Senior Advocate for the
petitioners during the course of arguments and by way of a rejoinder. It is
pertinent to note that the petitioners’ properties are not falling in the forest
areas. As such no permission from the MoEF is required for drawing lines
over the said properties.
28. Nevertheless, let us deal with the contention of the learned Senior
Advocate for the petitioners that the GTTPL is entering into the
petitioners’ properties without following due process of law and in breach
of principles of natural justice. Similar contentions in the context of the
provisions of Telegraph Act and the objections about the need for re-
alignment was subject matter for consideration before the High Court of
Gujarat in Gujarat State Energy Transmission Corporation Limited v/s.
Ratilal Maganji Brahmbhatt (Barot) – AIR Online 2020 Guj 1911 . heir
Lordships referred to a Division Bench judgment of this Court in Vivek
Bajendra Singh v/s. State Government of Maharashtra – 22012 (4)
Mh.L.J. 625 and in paragraph 56 observed thus:-
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WP-1407-24__F__.DOC“56. A Division Bench of the Bombay High Court, speaking
through Hon’ble Justice S. A. Bobde (as His Lordship then was)
negatived all the contentions, referred to above, and held as under;
” he land of the petitioners, which is largely agricultural,
fall within the meaning of the term “estate”.”
he term “rights” has been deined to include any rights
vesting in a proprietor, sub- proprietor etc. vide Clause (b) of Sub-
Article (2). Under the provisions of the Electricity Act, 2003 and the
Indian Telegraph Act, 1885 in question, the authorities, under
directions of the Government, acquire several rights in estates. hose
rights are in the nature of opening up and breaking up of the soil and
pavement of any street, railway or tramway upon certain conditions,
the power to lay overhead lines and for that purpose do all things
necessary, including the removal of trees, structures and objects, vide
Sections 67 and 68 of the Electricity Act, 2003 or the old Act of
1910. he authorities also acquire the rights over estates, such as the
user of property under, over, along, across, in or upon which the
telegraph authority places any line or post vide 10(b), the right to
enter the property in order to repair or remove lines vide 11, the
power to alter position of gas or water pipes or drains vide 14 and
further to apply for an order for removing resistance or obstruction
to the exercise of such a right by a District Magistrate. he efect of
Clause (b) to the proviso to Section 10 of the Telegraph Act is that
though the authority may place etc. a line upon any immovable
property, the Central Government thereby does not acquire any
right other than that of user only in the property. hus, the
provisions in question must be construed as law providing for the
acquisition of rights in any estate within the meaning of Article 31A
and, therefore, cannot be deemed to be void on the ground that they
are inconsistent with or take away or breach any of the fundamental
right conferred by Articles 14 or 19 of the Constitution. An
executive act performed under the law in question, namely, of
deciding to enter upon and entering the property of owners, is also
not vitiated on the ground that the initial attempt to enter the
property for the purpose of placing lines was not preceded by notice
or hearing. As observed earlier, the scheme of the law is that the
person ofering resistance or obstruction is entitled to be heard when
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the transmission company applies for removal of such resistance and
obstruction under Section 16(1). In our view, though not expressly
provided for, the requirement of hearing must be read into Section
16 (i). We are informed that as a practice land owners are always
heard when applications are made by a transmission company for
removal of obstruction and resistance. he requirement to hear the
owners or occupiers at this stage is, in our view, suicient compliance
with the rules of natural justice and, admittedly, in the present case
all the petitioners have been heard by the District Magistrate.
It was contended by Mr. R.P. Joshi, the learned counsel for the
petitioners that to the extent the fundamental rights are part of the
basic structure of the Constitution, even the validity of laws placed in
the Nineth Schedule can be tested against the basic structure of the
Constitution as held by the Supreme Court in I.R. Coelho (Dead)
By L.Rs. v. State of Τ.Ν. (2007) 2 SCC 1: (AIR 2007 SC 861). No
question of any immunity on the ground that the laws are placed in
the Nineth Schedule arises here. In fact, we ind that in Coelho’s case
the Supreme Court distinguished between the scheme of immunity
provided by Article 31A and Article 31B. It observed in relation to
Article 31 A that,
“…….Article 31-A does not exclude uncatalogued number of
laws from challenge on the basis of Part III. It provides for a standard
by which laws stand excluded from judicial review…….”
hus the reliance on the observations of the Supreme Court in
Coelho’s case for the proposition that it is not permissible to over-
ride the entire Part III of the Constitution by invoking Article 31-A
are misplaced.
Mr. Manohar relied on the judgment of the Supreme Court in
K.T. Plantation Private Limited and Anr. v. State of Karnataka
(2011) 9 SCC 1: (AIR 2011 SC 3430) and submitted that the
Supreme Court has reiterated that a law is immune from challenge
on the ground of arbitrariness, unreasonableness under Article 14 of
the Constitution of India. In the context of a law made by the
Legislature of a State, the Supreme Court observed as follows:-
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the impugned Act has got the assent of the President as required
under the proviso to Article 31-A(1), hence, immune from challenge
on the ground of arbitrariness, unreasonableness under Article 14 of
the Constitution of India.
209. Statutes are many which though deprive a person of his
property, have the protection of Article 30(1-A), Articles 31-A, 31-
B, 31-C and hence are immune from challenge under Article 19 or
Article 14, the basic structure and the rule of law, apart from the
ground of legislative competence. In I.R. Coelho case the basic
structure was deined in terms of fundamental rights as relected
under Articles 14, 15, 19, 20, 21 and 32. In that case the Court held
that statutes mentioned in Schedule IX are immune from challenge
on the ground of violation of fundamental rights, but if such laws
violate the basic structure, they no longer enjoy the immunity ofered
by Schedule IX.”
19. Mr. Joshi, the learned counsel for the petitioners relied on
the observations of the Supreme Court in the case of K.T. Plantation
Pvt. Ltd. to the efect that a law, though protected by Article 31-A,
may still be attacked on the ground that it violates the rule of law or
basic structure of the Constitution. However, there is nothing in the
present provisions which can be shown to have violated the rule of
law or the basic structure of the Constitution. Mr. Joshi also relied
on certain observations of the Supreme Court in Sahara India
(Firm), Lucknow v. Commissioner of Income Tax, Central-I and
Anr. (2008) 14 SCC 151: (AIR 2008 SC (Supp) 308) and submitted
that a hearing is an essential requirement before an administrative
action is taken. In Sahara India, however, the Supreme Court was
considering, whether a hearing before an order under Section 142(2-
A) of the Income Tax Act requiring special audit was necessary. he
Supreme Court observed that, an order under the said provisions of
the Income Tax Act leads to serious civil consequences and though
the provision does not either provide or bar a pre- decision hearing,
the principle of audi alteram partem will have to be read in such a
provision.
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20. Mr. Joshi also relied on the decisions of the Supreme
Court in Raghbir Singh Sehrawat v. State of Haryana and Ors.
(2012) I SCC 792: (AIR 2012 SC 468) and Darshanlal Nagpal
(Dead) By L.Rs. v. Government of NCT of Delhi and Ors., where
the Supreme Court dis- cussed the importance of natural justice
enshrined in Section 5A of the Land Acquisition Act before any
person is deprived of his land by way of compulsory acquisition. he
Supreme Court held that such a person must have an opportunity to
oppose the decision of the State Government to acquire the
particular parcel of land, particularly since he may also point out that
the land proposed to be acquired is not suitable for the purpose
speciied in the notiication issued under Section 4(1). he present
case does not involve the acquisition of land but only the user by the
State for a limited purpose, for which there is provision for payment
of compensation. Moreover, it seems unreasonable to confer on the
owners or occupiers of land a choice about what should be the route
of the electric line and where it should be placed, since such a
decision must yield to the dictates of technical knowledge, expertise
and viability. here is no doubt that if all owners and occupiers of
land over hundreds of kilometers are allowed to have a say and object
to the routes and if the validity of the orders passed under objection
is allowed to be contested, the route may not get inalized for years.
Having regard to the importance of electricity to the life of citizen,
particularly to essential services and industry, such a procedure
would be detrimental to public interest. Similarly, the observations
in Darshanlal Nagpal’s case, emphasizing the importance of the rules
of natural justice can- not be applied to the present case. Apart from
the fact that challenge on the ground of Article 14 is excluded by
virtue of Article 31A, we are of the view that the present case calls for
a situational exception and of necessity, the authorities may not be
compelled to hear owners and occupiers before deciding on the route
over which an electric line should be placed. herefore, the
contention that the legislative scheme, which does not require the
authorities to hear the owners and occupiers of the land while
planning the route of an electric line is unconstitutional, is rejected.
So also the contention that Section 164 of the Electricity Act, 2003
and Section 10 of the Indian Telegraph Act, 1885 are void being
violative of Article 14 is rejected.
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We do not see any merit in the contention that the provisions
are violative of Article 21 on the ground that they adversely afect the
health of persons living in or around high tension lines. In the irst
place, the electric line in question, which is high tension 400 KV line
is to be placed over agricultural ields and not over a residential area.
Secondly, no proof is placed before the court to enable it to draw an
inference that the placing of electric line causes cancer as alleged. We
are unable to draw this inference on the basis of a report from
Australia placed on record.
It was next contended on behalf of the petitioners that the
action of the transmission company in placing the electrical line over
the lands of the petitioners without obtaining the consent of the
owner or occupier is violative of Section 12 (2) of the Electricity Act,
1910. Section 12(2) of the said Act reads as follows:-
12. Provisions as to the opening and breaking of streets,
railways and tramways. – (1)……. (2) Nothing contained in sub-
section (1) shall be deemed to authorise or empower a licensee,
without the consent of the local authority or of the owner or
occupier concerned, as the case may be, lay down or place any
electric supply-line, or other work in, through or against any
building, or on, over or under any land not dedicated to public use
whereon, whereover or whereunder any electric supply line or work
has not already been lawfully laid down or placed by such licensee:
Provided that any support of an overhead line or any stay or
strut required for the sole purpose of securing in position any
support an over-head line may be ixed on any building or land or,
having been so ixed may be altered, notwithstanding the objection
of the owner or occupier of such building or land, if the District
Magistrate or in a Presidency-town the Commissioner of Police by
order in writing so directs:
Provided, also, that, if any time the owner or occupier of any
building or land on which any such support, stay or strut has been
ixed shows suicient cause, the District Magistrate or, in a
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altered.
his contention is misplaced in view of the provisions of the
Electricity Act, 2003. his Act was enacted for consolidating the laws
relating to generation, transmission, distribution, trading and use of
electricity and generally for taking measures conducive to
development of electricity industry. he Statement of Objects and
Reasons speciically referred to the need of harmonising and
rationalising the provisions of the Indian Electricity Act, 1910 and
the necessity to enact new legislation for regulating the electricity
supply industry in the country which would replace the existing laws.
Section 185 of the Electricity Act, 2003 repealed the Indian
Electricity Act, 1910 containing Section 12 relied upon by the
petitioners. Section 185 reads as follows:-
185. Repeal and saving.- (1) Save as other- wise provided in
this Act, the Indian Electricity Act, 1910 (9 of 2010), the Electricity
(Sup- ply) Act, 1948 (54 of 1948) and the Electricity Regulatory
Commissions Act, 1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal, – (a) anything done or any
action taken or purported to have been done or taken including any
rule, notiication, inspection, order or notice made or issued or any
appointment, conirmation or declaration made or any licence,
permission, authorisation or exemption granted or any document or
instrument executed or any direction given under the repealed laws
shall, insofar as it is not inconsistent with the provisions of this Act,
be deemed to have been done or taken under the corresponding
provisions of this Act;
(b) the provisions contained in sections 12 to 18 of the Indian
Electricity Act, 1910 (9 of 1910), and rules made thereunder shall
have efect until the rules under sections 67 to 69 of this Act are
made;
(c) the Indian Electricity Rules, 1956 made under section 37
of the Indian Electricity Act, 1910 (9 of 1910) as it stood before such
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repeal shall continue to be in force till the regulations under section
53 of this Act are made.
(d) all rules made under sub-section (1) of section 69 of the
Electricity (Supply) Act, 1948 (54 of 1948) shall continue to have
efect until such rules are rescinded or modiied, as the case may be;
(e) all directives issued, before the commencement of this Act,
by a State Government under the enactments speciied in the
Schedule shall continue to apply for the period for which such
directions were issued by the State Government.
(3) he provisions of the enactments speciied in the Schedule,
not inconsistent with the provisions of this Act, shall apply to the
States in which such enactments are applicable.
(4) he Central Government may, as and when considered
necessary, by notiication, amend the Schedule.
(5) Save as otherwise provided in sub-section (2), the mention
of particular matters in that section, shall not be held to prejudice or
afect the general application of section 6 of the General Clauses Act,
1897 (10 of 1897), with regard to the efect of repeals.
According to the petitioners since Rules have not been made
under Sections 67 to 69 of the new Act of 2003, the provisions
contained in Sections 12 to 18 continue to have efect as provided by
Clause (b) above and, therefore, the respondents were bound to
obtain the consent of the owners and occupiers of the land under
Section 12. his submission is based on an erroneous assumption
that the act of placing an electric line is being performed by the
Transmission Company under Section 12 of the Electricity Act,
1910 which is temporarily saved as a transitory provision till the
enactments of rules. On the other hand, the State of Maharashtra has
issued a notiication under Section 164 of the new Act of 2003
conferring powers with respect to the placing of telegraph lines and
posts, which the Telegraph Authority possesses under the Indian
Telegraph Act, 1885 for the purpose of placing of electric line for
transmission of electricity on the Transmission Company. When
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such a notiication is issued under the Electricity Act, 2003 in terms,
the person authorized exercises powers of a Telegraph Authority
under the provisions of the Indian Telegraph Act, 1885 and not
powers under Sections 12 to 18 of the old Act, 1910 which are
temporarily saved. It is obvious that after such authorization under
Section 164 of the new Act 2003, the Transmission Company is
bound to exercise the powers of a Telegraph Authority with respect
of placing of telegraph lines and posts for the purpose of placing of
an electric line for the transmission of electricity. hese powers are
found in Part-III of the Indian Telegraph Act, 1885 vide Sections 10
to 16. None of these provisions provide for obtaining consent of an
owner or occupier of the land. he legislative scheme in regard to the
electric lines is that after the repeal of the Indian Electricity Act,
1910, the work of placing of electrical lines must be done under
Sections 12 to 18 of the old Act 1910 till rules are framed under
Sections 67 and 68 of the new Electricity Act, 2003. If there is any
such notiication under Section 164 of the new Act 2003, conferring
powers of the Telegraph Authority for the purpose of placing electric
lines, during the transitory period when rules are not framed under
Sections 67 and 68 of the new Act 2003, they did not and cannot act
under Sections 12 to 18 of the old Act, 1910. he contention on
behalf of the petitioners is, therefore, rejected.”
29. heir Lordships in Gujarat State Energy Transmission Corporation
Limited (supra), took notice of the fact that in the above referred judgment
of the Bombay High Court, the judgment of Gujarat High Court in the
case of Himmatbhai Vallabhbhai Patel v/s. Chief Engineer (Project)
Gujarat Energy Transmission and Ors. – AIR 2011 (NOC) 405 (Guj) has
been relied upon and quoted with approval in paragraph 25. he inal
conclusions in paragraph 58 are extremely signiicant reading thus:-
” 58. he inal conclusions are as under:-
58.1 he Part III of the Telegraph Act, 1885, deals with the
Power to place “Telegraph Lines and Posts” and there are other
provisions in the said Act, applicable to all the properties. As seenPage 38 of 50
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authority to place and maintain telegraph lines and towers, are
traceable to Sections 10, 11 and 14 of the Act, 1885 and by virtue of
Section 164 of the Electricity Act, 2003, it is conferred on any public
oicer, licensee or any other person engaged in the business of
supplying electricity.
58.2 As per Clause (c) to Section 10, the authority can exercise its
powers in respect of the property of a local authority only, by
obtaining permission of that authority, whereas, no such permission
is required in relation to the property of others. Section 10 does not
contemplate notice to an owner or occupier of land to show cause
against laying of a line and it authorizes the telegraph authority, to
place a telegraph line under, over, along or across any immovable
property. he proviso makes it clear that the licencee or any other
authorised person does not acquire any right, other than that of user
of the property. he right conferred on the land owner is only to seek
for payment of compensation for any damage sustained by him, by
reason of exercise of the powers.
58.3 Section 10 of the Indian Telegraph Act, 1885, confers a legal
sanction to a telegraph authority to enter into any private property,
subject to the condition that, while entering into the property and
during the course of execution of any work, the telegraph authority is
under an obligation to cause as little damage, as possible, and shall
pay full compensation to all the persons interested for any damage
sustained by them, while exercising the powers conferred under
Section 10 of the Act.
58.4. When power of the telegraph authority to enter into any
private property, is subject to the conditions to cause as little damage
as possible, and when there is a provision for payment of
compensation, the question as to whether, the said authority should
seek for consent from the owner of the property, or provide him an
opportunity of hearing before entering into the property, does not
arise. However, the land owner may be informed of the work to be
executed.
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58.5 Since the powers under Section 10 of the Indian Telegraph Act,
1885, can be exercised without acquiring the land in question, once
an order is passed by the appropriate government under Section 164
of the Electricity Act, 2003, the public oicer, licensee or any other
person engaged in the business of supplying electricity shall be
entitled to proceed with the works of placing the electric lines
without acquiring the land in question. Usage of the land by the
licencee or the authorised person, does not amount to acquisition.
58.6 Section 164 of the Electricity Act, 2003, empowers the State
Government to confer, by an order in writing, powers which the
telegraph authority possesses under the Indian Telegraph Act, 1885,
with respect to placing of the telegraph lines and posts, on any public
oicer, licensee or any other person engaged in the business of
supplying electricity under that Act, for placing of electrical plants
and electric lines, in terms of Section 2(20), which deines “electric
line”, as any line which is used for carrying electricity for any purpose
and includes–
“(a) any support for any such line, that is to say, any structure,
tower, pole or other thing in, on, by or from which any such
line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of
carrying electricity; ”
58.7 he power conferred on any public oicer, licensee or any other
person engaged in the business of supplying electricity under the
Electricity Act, for the abovesaid purpose, may be subject to such
conditions, if any, the Government may deem it to impose and also
subject to the provisions of the Indian Telegraph Act, 1885.
58.8 he authorisation, in terms of Section 164 of the Electricity
Act, 2003, read with Section 10 of the Indian Telegraph Act, 1885,
authorising the public oicer or licencee or any other person engaged
in supplying electricity, all the powers of the Telegraph Authority,
which includes the power to enter into any private property, subject
to the condition that while entering into the property and the public
oicer or licensee or any other person, authorised under the Act, is
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under an obligation to cause as little damage as possible, with a
guarantee for payment of compensation for the owner of the land or
the persons interested.
58.9 Sections 16 and 17 respectively of the Indian Telegraph Act,
1885, do not limit the absolute powers of the telegraph authority to
enter into any property for the purpose of enforcement of Section 10
of the Indian Telegraph Act, 1885, read with Section 164 of the
Electricity Act, 2003, by which, the public oicer or licensee or any
other person engaged in the business of supplying electricity under
this Act, is empowered to exercise all the powers, for the purpose of
placing electrical plant, line, erection of towers, conductors, poles,
etc. 58.10 he intention of the Legislature, is to provide electricity,
in terms of Section 43 of the Electricity Act, 2003. When the
purpose of the Act, is to provide the basic amenity of electricity to
the public at large, and if every objection/resistance has to be
entertained under Section 16(1) of the Indian Telegraph Act, 1885,
then it would render Section 10 of the Indian Telegraph Act, 1885
and Section 164 of the Electricity Act, 2003, meaningless, thereby,
the power conferred on the telegraph authority to enter into any
property, subject to causing, as little damage as possible, with an
assurance of payment of compensation to the damage, if any, would
be redundant.
58.11 If Section 16(1) of the Act, has to be construed, conferring a
right on the landowner to seek for an opportunity of prior notice or
consent, then the very purpose of Section 10 of the Indian Telegraph
Act, 1885 and Section 164 of the Electricity Act, 2003, would be
defeated.
58.12 Vis-a-vis Section 185 (2) (b) of the Electricity Act, 2003 and
Section 12 (2) of the repealed Indian Electricity Act, 1910, under
which the consent of the owner or occupier is essential and on the
issue, as to the enforceability of Section 12 of the Act, until the Rules
are made under Section 67 of the Electricity Act, 2003, consent of
the owner or occupier is necessary, only in the absence of any order,
passed under Section 164 of the Electricity Act, 2003.
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58.13 Having taken into consideration the relevant provisions of the
Indian Telegraph Act, 1885 and Electricity Act, 2003 and analysis of
Section 67 and section 164 of the Electricity Act, 2003, the legal
position is that, whenever an order is passed by the appropriate
Government, in exercise of powers under Section 164 of the
Electricity Act, 2003, for placing of electric lines for the transmission
of electricity, conferring upon any public oicer, licensee or any
other person engaged in the business of supplying electricity any of
the powers which the telegraph authority possesses under the Indian
Telegraph Act, 1885, with respect to the placing of telegraphic lines
and posts for the purposes of a telegraph established by the
Government, such public oicer, licensee or any other person
engaged in the business of supplying electricity, exercises all the
powers, as that of the telegraph authority, under the Indian
Telegraph act, 1885.
58.14 However, in the absence of such an order under Section 164
of the Electricity act, 2003, if a licensee i.e., a person who has been
granted a licence to transmit electricity or to distribute electricity
under the Act, proposes to place electric lines, electric plant or other
works necessary for transmission or supply of electricity, Section 67
of the Electricity Act, 2003 comes into operation and consequently,
prior consent of the concerned owner or occupier, may be required,
under Section 12 (2) of the Indian Electricity Act, 1910.
58.15 he provisions of the Works of Licensees Rules, 2006 made
under Section 67 (2) of the Electricity Act, 2003 are in pari materia
to Section 12 of the repealed Indian Electricity Act, 1910. he
Works of Licensees Rules, 2006 are applicable, only in a case, where
the works have been taken up by the licensee, under Section 67 (1)
of the Electricity Act, 2003. But Section 67 (1) of the Electricity Act,
2003, as well as the rules made under Section 67 (2) would govern
the ield, only in the absence of an order, under Section 164 of the
Electricity Act, 2003.
58.16 Section 16 states that if there is any resistance or obstruction,
the District Magistrate may in his discretion, order that the telegraph
authority shall be permitted to exercise all the powers. Further, after
such an order, a person ofering any further resistance is deemed to
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have committed ofence under Section 188 of the Indian Penal
Code. Once the technical feasibility of the project, has been
approved by the appropriate Government, by issuing an order under
Section 164 of the Electricity Act, 2003, no land owner or person
interested can seek for shifting or re-aligning of the route, on the
premise that the District Collector-cum-District Magistrate, has the
powers to do so. he District Collector has no powers to alter any
route or alignment, except to remove the diiculties faced by the
licencee or the person authorised, pursuant to the orders issued
under Section 164 of the Act.
58.17 If the intention of the Legislature was to seek for consent or
permission from every owner and if the right of such owner has to be
recognised, in terms of Section 16(1) of the Telegraph Act, due to
resistance/obstruction, then the execution of any work or project,
would be stopped at every stage. Needless to state that the execution
of works, involving erection of towers and connection of overhead
lines, is done, only after a detailed ield study, by identifying a
feasible route of the proposed transmission line, and while selecting
suitable corridors, residential areas to be avoided, span length, the
angle of deviation, extent of damage, likely to be caused, while
erecting towers, maintenance cost of electric lines and towers and
other factors, have to be considered. Public interest, in providing
electricity to a large section of people and industrial establishments,
etc., has to be given weightage over private interest.
58.18 If the authorities have to recognize the right of obstruction or
resistance, in terms of Section 16(1) of the Indian Telegraph Act,
1885, then the moment, any notiication is published, all the
landowners or interested persons, who have the knowledge of the
commencement of any development work, would immediately resist
or obstruct the work, and may even seek for re-location or if the
towers, posts had already been erected, may seek for re-alignment or
removal of towers and plants, erected by the public oicer or licensee
or any other person, engaged in the business of supplying electricity,
authorised to carry out the works, in terms of an order passed by the
appropriate Government, under Section 164 of the Electricity Act,
2003.
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58.19 When a project involves huge expenditure, erection of many
towers at various places and when such project involves, greater
public interest, then even a single owner, under the pretext of
making objections/resistance, would attempt to stall the process of
execution of the project. When entry into any property is legally
authorised, with payment of compensation to the land owner, no
prior consent is required.
58.20 he Apex Court and other Courts in India, have categorically
held that the action of the licencee or the competent authority, in
erecting poles or posts, in the property or drawing lines over the
property, does not amount to acquisition of lands and it amounts to
only user of the property to the extent indicated and therefore, there
is no requirement to initiate any land acquisition proceedings, giving
opportunity to the land owners, when execution of the work, is
ordered under Section 164 of the Act and accordingly, carried out by
the licencee or any other competent authority.
58.21 Even if any Court issues any directions to consider the
representation of any land owner or person interested, such
directions are required to be considered only to the limited extent of
payment of compensation, to be given by the licencee or the
competent authority and the directions issued, if any, would not
empower the District Collector-cum-District Magistrate, to pass any
order, contrary to the orders, passed under Section 164 of the Act.
58.22. When the appropriate Government passes an order under
Section 164 of the Act, the Collector is bound by the said order, and
he is not superior to the Government, to hold that the Government
has erred in passing an order, under Section 164 of the Act,
authorising the licencee or the competent authority to carry out the
work, in the route, which involves Techno-Economic Consideration.
58.23 he Act confers powers to the Telegraph Authority to
determine the property over which the lines are to pass or posts to be
erected. he powers of the District Magistrate under Section 16(1) of
the Indian Telegraph Act, 1885, does not extent to any adjudication,
as to from where and how, the line has to be drawn over any speciic
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item of the property or where posts have to be erected or not, in any
speciic item of the property.
58.24 he Power of the District Magistrate is conined only to the
extent of exercising his discretion in granting permission to the
Telegraph Act, to execute the work, when an application is made by
the licencee or the competent authority.
58.25. Section 10 of the Indian Telegraph Act gives legal sanction to
the licencing authority to enter into any property, to lay poles or
posts or draw electric lines. But while doing so, the damage of the
property should be less. If there is any resistance, the licencee or the
authorised person may approach the District Magistrate-cum-
District Collector, to grant permission.
58.26. Once the power is conferred on the licencee or any other
competent authority, there can be no objection to the
implementation of the scheme, on the principles of natural justice or
on the ground of unauthorised use of the land.
58.27. he legislature has conferred powers on the appropriate
Government to authorize a public oicer or a licencee, etc., under
the Electricity Act to exercise the speciic powers of an authority
under the Indian Telegraph Act, 1885. he authorisation may be
general in favour of a transmission company or in a given case,
special. he route is decided by the transmission company. he
decision to mark a route for laying an electric line is a highly
specialized and technical. At that time, it is unrelated to any speciic
land owner. he route may be for over hundreds of kilometers
passing over Government lands, lands of local authorities and private
lands and it may not be practicable to hear the land owners along the
entire route.
58.28. Having regard to the specialized and technical nature of the
task, and the fact that the lines are laid for distribution of electricity,
it is the view of this Court that, the Legislature has not provided for
any notice or hearing to the public at large, or to the land owners.
herefore, when the appropriate Government authorises a person or
any body under the Electricity Act, to exercise the powers of the
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Telegraph Authority, all the powers under the Indian Telegraph Act,
1885, are meant to be exercised.
58.29. he Electricity Act, 2003, is a progressive enactment, with a
speciic purpose of providing electricity to a large number of people,
across the country, to promote industrial and sustainable
development in all walks of life. Right of a land owner to possess and
enjoy the property, though recognised as a Constitutional Right,
under Article 300-A of the Constitution of India, such right has to
yield to the Articles 14 and 21 respectively of the Constitution of
India, which strive to achieve the Constitutional Goals, enshrined in
the basic structure of the Constitution of India. [see T. Bhuvaneswari
vs. he District Collector cum District Magistrate, Erode District,
Erode, W.P. No.18548 of 2013, decided on 19.11.2013]”
(Emphasis supplied)
30. Having carefully perused the decision of the High Court of Gujarat
which relied on a decision of this Court, though the learned Senior
Advocate for the petitioners submitted that the decision of the High Court
of Gujarat has only a persuasive value and we take a diferent view, we ind
ourselves in respectful agreement with the view taken by heir Lordships
and see no reason to take a diferent view.
31. Insofar as the contention of the learned Senior Advocate for the
petitioners – “(a) that there are no materials indicating about the survey
being conducted from where the 400 KV line will pass; (b) that the
alignment is changed to favour somebody to the detriment of the
petitioners; (c) that the principles of natural justice are violated”, we ind
that the notiication of the Central Electricity Authority, Ministry of Power
dated 28.11.2018 conferred powers to the GTTPL for laying overhead
lines, which the Telegraph Authority possesses under the Indian Telegraph
Act, 1885, which overhead lines are to pass through over, around and
between the villages indicated in the notiication and so far as the Xeldem-
Mapusa 400 KV line is concerned, the Amona village is speciicallyPage 46 of 50
27th September, 2024
WP-1407-24__F__.DOCmentioned therein. he petitioners are not alleging any malaides nor are
there any pleadings or materials to indicate that such re-alignment is
contrary to any provisions of law. he GTTPL is implementing the
scheme pursuant to the powers conferred on it under Section 164 of the
Electricity Act. he project is in the public interest. he electric line is
deined in terms of Section 2(20) as any line which is used for carrying
electricity for any purpose and includes any support for any such line, that
is to say, any structure, tower, pole or other thing in, on, by or from which
any such line is, or may be, supported, carried or suspended. In the facts of
the present case there is no question of insistence on the compliance with
the principles of natural justice before erecting the towers which is used as
a support to carry the electric line. Section 10 of the Indian Telegraph Act
gives legal sanction to the licencing authority to enter into any property, to
lay poles or posts or draw electric lines. But while doing so, the damage of
the property should be less. If there is any resistance, the licencee or the
authorised person may approach the District Magistrate-cum-District
Collector, to grant permission. It is relevant to note that the Collector,
North Goa has iled an aidavit in reply opposing the petition. In
paragraph 22 to 26 it is stated thus:-
“22. I say that on 16.04.2024 the owners/occupiers of the subject
immovable properties in Village Amona attended the meeting
including Petitioner Nos. 1, 2, 3, 6, 14, 15, 18, 20, 23 & 29 herein.
I say that all the owners/occupiers of the subject immovable
properties in Amona, Village objected to the proposed alignment of
the 400kV transmission line, which objections were heard by the
Additional Collector – I and the owners/occupiers were explained the
provision in law pertaining to the issue at hand.
Page 47 of 50
27th September, 2024
WP-1407-24__F__.DOCAnnexed hereto is a copy of the Roznama of the hearing dated
16.04.2024 marked as “Annexure D”.
23. I say that pursuant to the hearing dated 16.04.2024, an order
dated 13.05.2024, under Section 16 and Section 10 of the Indian
Telegraph Act 1885 was issued in respect of Survey Nos. 98/4, 96/3,
91/2, 84/1, 83/2, 83/3 and 66/9 of Village Amona, Bicholim Goa.
Hereto annexed is a copy of the order dated 13.05.2024 alongwith
the corrigendum dated 03.09.2024 marked as “Annexure E”.
24. I say that the details of land compensation of tower foundation
area of 400 kV D/c Xeldem-Mapusa Transmission line in Amona
Village has been ascertained.
Annexed hereto is a copy of the details of land compensation of
tower foundation area of 400 kV D/c Xeldem-Mapusa Transmission
line in Village Amona marked as “Annexure F”.
Annexed hereto is a plan showing position of the foundation on
survey map alongwith detail arca chart specifying area and survey
number marked as “Annexure G”.
25. I say that details of the area coming under the power
transmission line corridor in Amona Village has been identiied, and
has been sent to the Dy. Collector, Bicholim, Goa for further action
vide letter dated 12.08.2024.
Annexed hereto is a copy of the letter dated 12.08.2024 marked as
“Annexure H”.
26. I say that the Dy. Collector, Bicholim, Goa has issued a
Memorandum dated 27.08.2024 to the Mamlatdar, Bicholim to
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27th September, 2024
WP-1407-24__F__.DOC
issue necessary directions to the Talathi of Amona, Village to identify
the actual owners/interested parties in the survey numbers
mentioned therein, in order to enable the Oice of the Collector to
take necessary steps to proceed with the identiication of beneiciaries
and distribution of compensation with regards to the GTTPL
project.
Annexed hereto is a copy of the Memorandum dated 27.08.2024
marked as “Annexure I”.”
32. he said decision of the High Court of Gujarat is complete answer to
the submissions made by learned Senior Advocate for the petitioners.
33. We further ind that while undertaking the work the permission of
the Tree Authority for felling of trees has been obtained. As indicated
earlier, the properties of the petitioners do not form a part of the forest
land to be covered by the judgment of the Supreme Court in T. N.
Godavarman hirumulpad (supra).
34. It is not the case of the petitioners that their properties are falling
within the CRZ area for which the permission of the GCZMA is necessary.
he permission of the GCZMA will arise in case of a deviation in the
alignment if the property falls within the CRZ area. he contention of
learned Senior Advocate for the petitioners that permission of GCZMA is
required before change in alignment is therefore without any substance.
35. he learned Advocate General and Mr Bhobe submitted that the
claim of compensation will be looked into expeditiously and released
according to law. It is further assured that due care will be taken to ensure
that there will be minimum damage to the properties of the petitioners
while executing the project.
Page 49 of 50
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WP-1407-24__F__.DOC
36. We therefore do not ind any merit in the petition and is accordingly
dismissed. We make it clear that we have not made any observations on
the entitlement of the petitioners to claim compensation in accordance
with law and the question is kept open.
37. he Rule is discharged. he petition is dismissed with no order as to
costs.
VALMIKI MENEZES, J. M. S. KARNIK, J.
Signed by: SUCHITRA NANDAN
SINGBAL
Designation: Personal Assistant Page 50 of 50
Date: 28/09/2024 16:34:52 27th September, 2024