Dismissed

Maheshkumar G Garodia v. the Union Ofindia through the Office of Deputy Salt Commissioner

Bombay HC17 Apr 2024WP/2155/2023

Case brief

AI extract

What is this about?

A writ petitioner sought relief after being restrained from obstructing transmission tower work based on an order later found void for lack of jurisdiction. The court held that due to larger public interest, restoration is not warranted, but granted liberty to claim damages or compensation.

What did the court decide?

Liberty to approach Civil Court to claim damages or compensation against KVTL for the work carried out on the strength of the invalid order.

Maheshkumar G Garodia Vs the Union Ofindia through the… — Service and Employment | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.2155 OF 2023

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Maheshkumar G. Garodia,]
R/of Ghatkopar, Mumbai] .. Petitioner
 Versus
1. The Union of India,]
 Through Deputy Salt Commissioner, Mumbai]
2. Kharghar Vikhroli Transmission Ltd., Ahmedabad]
 Through Authorized Representative]
3. Collector and District Magistrate,]
 Mumbai Suburban District, Bandra, Mumbai] .. Respondents

¶4

Mr. Shyam Mehta, Senior Advocate, with Mr. Aditya Bapat and
Mr. Shehzad A.K. Najam-es-sani, Advocates i/by Maneksha and Sethana,
for the Petitioner.

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Mr. Shriram Redij with Ms. Savita Ganoo, Advocates i/by Mr. Dharmesh
Joshi, for Respondent No.1.

¶6

Mr. Venkatesh Dhond, Senior Advocate, with Mr. Shrinivas Bobde,
Ms. Shweta Jaydev and Ms. Neha Sonawane, Advocates i/by Rashmikant
and Partners, for Respondent No.2.

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Mrs. P.H. Kantharia, Government Pleader, with Ms. Nazia Shaikh, Asst.
Government Pleader, for Respondent No.3-State of Maharashtra.

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CORAM : A.S. CHANDURKAR & JITENDRA JAIN, JJ

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The date on which arguments were heard: 22ND MARCH, 2024.
The date on which Judgment is pronounced: 17TH APRIL, 2024.

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JUDGMENT : [ Per A.S. Chandurkar, J. ]

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1. RULE. Rule made returnable forthwith and heard learned counsel

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for the parties.

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2.The question that arises for consideration in this writ petition filed
under Article 226 of the Constitution of India is what would be the effect
of work of laying transmission towers under provisions of the Indian
Telegraph Act, 1885, (for short, “Act of 1885”), being carried out on the
strength of a restraint order passed under Section 16(2) of the Act of
1885, which order is subsequently revoked as having been issued without
jurisdiction?

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3.The facts lie in a narrow compass. The 2nd respondent - Kharghar
Vikhroli Transmission Ltd. (“KVTL”) is a licensee under Section 14 of the
Electricity Act, 2003 (for short, “Act of 2003”) and is empowered to
transmit electricity in terms of the Transmission License issued to it. KVTL
was granted the work of setting up a 400 KV Receiving Station and laying
of associated transmission towers for strengthening the Mumbai
Transmission System. After obtaining all requisite permissions, including
the leave of this Court, as required by paragraph 83(viii) of the directions
issued in Public Interest Litigation No.87 of 2006 (Bombay Environmental
Action Group and Anr. Vs. The State of Maharashtra and Ors.), KVTL
commenced the said work. It was required to install forty-seven
transmission towers, out of which seven towers were located on the lands
leased in favour of the petitioner. An area to the extent of 1,250 sq.mtrs.

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was to be affected by the five towers to be erected. There being an
obstruction caused by the petitioner while undertaking the work of laying
down the transmission towers, KVTL approached the office of the Resident
Deputy Collector and Additional District Magistrate under Section 16 of
the Act of 1885. On 3rd May 2023, the Resident Deputy Collector and
Additional District Magistrate passed a prohibitive order against the
petitioner restraining him from causing any obstruction when the
aforesaid work was to be undertaken. An opportunity was granted to the
petitioner to put-forth his say on 17th May 2023. This order is the subject
matter of challenge in the present writ petition that was filed on 9th May
2023.

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4.The learned counsel for the parties were heard on the issue of grant
of interim relief. This Court by its interim order dated 4th July 2023
observed that it was necessary for the District Magistrate while passing an
order under Section 16(1) of the Act of 1885 to hear such person likely to
be affected by that order. Thus, while refusing to restrain KVTL from
undertaking the work in question on the ground that the work that was
being carried out was in public interest and that the same was likely to
affect only 1,250 sq.mtrs. of the lands claimed by the petitioner, an
opportunity of hearing the petitioner under Section 16(1) of the Act of
1885 came to be granted.

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5.Pursuant to the interim order dated 4th July 2023, the Collector and
District Magistrate, Mumbai Suburban District heard the petitioner in the
light of his contention that the Resident Deputy Collector and Additional
District Magistrate had no jurisdiction to pass the order dated 3rd May
2023. The Collector and District Magistrate passed an order on 26th June
2023 holding that the Resident Deputy Collector and Additional District
Magistrate had no jurisdiction to pass the said order on 3rd May 2023.
Hence, the order dated 3rd May 2023 came to be revoked by the Collector
and District Magistrate. This fact has been brought on record by the
petitioner in his affidavit-in-rejoinder.

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6.Mr. Shyam Mehta, learned Senior Advocate for the petitioner
submitted that the entire premise on the basis of which KVTL carried out
the work of laying down the transmission towers on the lands in which the
petitioner had interest was without any authority of law. The petitioner
was restrained by the order passed under Section 16(2) of the Act of 1885
from causing any obstruction. The prohibitive order dated 3rd May 2023
passed by the Resident Deputy Collector and Additional District Magistrate
was the basis on which the work of laying the transmission towers was
carried out. In view of the order dated 26th June 2023 passed by the
Collector and District Magistrate, Mumbai Suburban District, it was clear

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that the Resident Deputy Collector and Additional District Magistrate had
no authority whatsoever to pass the prohibitive order on 3rd May 2023.
Thus, on the strength of an order passed without jurisdiction, the
petitioner was restrained from objecting to the work undertaken by the
KVTL on his lands. It was thus clear that when the work of laying the
transmission towers was carried out, KVTL had no authorization in law to
do so. The petitioner was within his rights in obstructing the carrying out
of the work of laying the transmission towers under Section 16 of the Act
of 1885. This position was also recognized in paragraphs 15 and 16 of the
interim order dated 4th July 2023 passed in the present proceedings.
Reference was made to the interim order dated 16th December 2020 in
Writ Petition (Lodging) No.3523 of 2020 (The Union of India Vs. State of
Maharashtra and Ors.) with connected writ petitions. It was thus
submitted that though the transmission towers had now been erected, this
was done by restraining the petitioner from causing any obstruction on the
strength of an order that was clearly without jurisdiction. It was thus
urged that this Court may grant appropriate relief to the petitioner under
Article 226 of the Constitution of India.

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7.On the other hand, Mr. Venkatesh Dhond, learned Senior Advocate
for KVTL opposed the prayers made in the writ petition. He submitted that
as a licensee, KVTL was empowered under the Act of 2003 to lay down the

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transmission towers. On valid permissions being granted to carry out that
work, KVTL was entitled to do so without any obstruction by an occupier.
Though it was a fact that KVTL had approached the Authority under
Section 16 of the Act of 1885, it subsequently transpired that the said
Authority that had passed the order on 3rd May 2023 had in fact no
jurisdiction but that jurisdiction was with the Commissioner of Police.
Since the work of laying down the transmission line had been carried out
after obtaining due permissions, no relief whatsoever could be granted to
the petitioner. It was not necessary for a licensee to obtain consent of an
occupier and what was necessary was merely furnishing of the information
that such work was intended to be carried out. After doing so, the work
had been carried out and the same was now complete. Since no interim
relief was granted to the petitioner on 4th July 2023, it could not be said
that the said work had been illegally carried out by the KVTL. Larger
public interest being involved, there would be no justification in directing
the clock to be put back in these circumstances. It was thus submitted that
no relief whatsoever could be granted to the petitioner.

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8.Mr. Shriram Redij, learned counsel appearing for the 1st respondent
pointed out that the petitioner was in possession of the aforesaid lands as
a lessee pursuant to an agreement dated 15th October 1917. The lease
granted was for a duration of ninety-nine years and on determination of

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the lease, the petitioner’s occupation was unauthorized. Though renewal
of said lease was sought, the same had not yet been granted. Since only a
small number of towers had been erected on the land of the petitioner,
which work was also completed, no relief whatsoever could be granted to
the petitioner.

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9.We have heard the learned counsel for the parties at length and with
their assistance, we have perused the documents on record. We have given
due consideration to their respective submissions. It may be noted that
though the petitioner has prayed for quashing the license dated 16th
August 2022 granted by the 1st respondent to KVTL, this prayer was not
urged before us. The grievance raised on behalf of the petitioner is to the
consequence of being restrained from causing any obstruction to the
laying of transmission towers by the order dated 3rd May 2023 passed by
the Resident Deputy Collector and Additional District Magistrate, which
order has been subsequently withdrawn on the ground that the said
Authority had no jurisdiction to pass the same. Prior to the said order
being withdrawn on 26th June 2023, the work of laying the transmission
towers was carried out by KVTL. Thus, according to the petitioner, on the
basis of an order that was without jurisdiction, the petitioner was
precluded from objecting to the work being undertaken by KVTL on his
land as a result of which the said work was completed.

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10.In Vivek Brajendra Singh Vs. State Government of Maharashtra and
Ors., 2012(4) Mh.L.J. 625, the Division Bench has while considering the
challenge to the vires of Section 10 of the Act of 1885 held that from the
scheme of Sections 10 and 16 of the Act of 1885, a hearing is not
contemplated before an electric line is placed in any immovable property.
However, hearing is contemplated if there is obstruction or resistance to
such placing. In other words, it was held that no hearing was
contemplated under Section 10 and a limited hearing was contemplated
under Section 16 of the Act of 1885.

¶40

.The order dated 3rd May 2023 though restrained the petitioner from
causing any obstruction to KVTL, it also informed the petitioner of an
opportunity of being heard on 17th May 2023. Thus, the limited hearing as
contemplated by Section 16 was offered to the petitioner. Though the
requirement of Section 16 of the Act of 1885 was satisfied, the order was
passed by an authority that had no jurisdiction to pass the same.

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11.It is true that by the order dated 3rd May 2023 passed by the
Resident Deputy Collector and Additional District Magistrate, the
petitioner was directed not to obstruct the work of laying the transmission
towers. Being aggrieved by this order, the petitioner has challenged the

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same in the present writ petition. The petitioner’s prayer for grant of
interim relief was considered on 4th July 2023 and it was held that passing
a restraint order so as to stop the activity of laying the transmission towers
would be against public interest. Instead, the petitioner was granted an
opportunity of being heard by the Competent Authority. It is in that
backdrop that the Collector and District Magistrate found on 26th June
2023 that the order dated 3rd May 2023 had been passed by the Resident
Deputy Collector and Additional District Magistrate without having any
authority in that regard. In the interregnum, KVTL completed the said
work. Thus, in effect, the petitioner was restrained by the order dated 3rd
May 2023 from causing any obstruction to the work being undertaken by
KVTL and that order came to be withdrawn on 26th June 2023 after
finding that it was passed by an authority that had no jurisdiction to issue
such directions. It is however to be noted that after the order dated 26th
June 2023 was passed, the writ petition has not been amended to seek any
consequential relief based on that order.

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12.Ordinarily, on the offending order being found to be one without
jurisdiction, the party suffering that order would be entitled to be put back
in the position it was prior to passing of such order. However, this cannot
be an absolute proposition. The factual situation would be required to be
kept in mind before considering the prayer for being restored to the earlier

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position. In a given case, if larger public interest militates against grant of
such direction and the aggrieved party can seek compensation or damages
in monetary form, such direction need not be issued.

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.The work of laying the transmission towers has been found to be in
public interest especially since the same was permitted to be carried out
after seeking leave of this Court in terms of the directions issued in
Bombay Environmental Action Group (supra). Considering the nature of
the work undertaken, we do not feel that it would be in public interest to
direct the said transmission towers to be now removed so as to restore the
petitioner’s lands to their original position. In our view, the only relief that
can be granted to the petitioner is a liberty to approach the Civil Court
with a prayer to seek damages / compensation on the premise that the
work of laying the transmission towers had been carried out by restraining
the petitioner on the strength of the order dated 3rd May 2023 that has
been subsequently found to have been passed without jurisdiction. We
may note that under Section 10(d) of the Act of 1885, the petitioner is
entitled to compensation for any damage sustained to his land during the
exercise of powers conferred by Section 10 of the Act of 1885 by KVTL.
Further, an opportunity to contest the sufficiency of compensation paid
under Section 10(d) is also available under Section 16(3) of the Act of
1885. The liberty now being granted to the petitioner would be over and

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above the statutory right to compensation to which he is entitled. It is thus
open for the petitioner to agitate his rights in that regard before the Civil
Court, if so advised. The rights, if agitated, would be subject to due
adjudication in accordance with law. In these facts therefore we do not
find that the interim order dated 16th December 2020 in Union of India

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(supra) can take the case of the petitioner any further.

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13.For aforesaid reasons, the question framed is answered by stating
that in view of larger public interest, we do not find that any relief can be
granted to the petitioner in this writ petition except the liberty to claim
damages / compensation against KVTL in accordance with law. Keeping
that aspect open, Rule is disposed of in aforesaid terms, leaving the parties
to bear their own costs.

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[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J. ]

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Digitally signed by SNEHA SNEHA ABHAY ABHAY DIXITDate: DIXIT 2024.04.17 11:10:53 +0530

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WP-2155-2023.doc Dixit

Maheshkumar G Garodia v. the Union Ofindia through the Office of Deputy Salt Commissioner

Case brief

What is this about?

What did the court decide?

Maheshkumar G Garodia v. the Union Ofindia through the Office of Deputy Salt Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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