TaxTMI 
TaxTMI 
2013 (8) TMI 879
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....ectricity (Supply) Act, 1948, the following transmission schemes which the Orissa State Electricity Board intends to undertake for execution, are published for general information. It is also notified in the interest of general public that any person interested in making representation regarding the execution of the above schemes, may submit such representation in writing so as to reach the Secretary, Orissa State Electricity Board, Bhubaneswar-751007 within 2 (two) months from the date of publication. Full details of the schemes and the plan may be seen in the Office of the Chief Engineer (Planning, Monitoring and Coordination), Orissa State Electricity Board, Bhubaneswar on any working day during office hours. A) 220 KV LINES Sl. No. Name of the Scheme (Rs.In lakhs) | (1) (2) (3) 2 220 KV DC line from Meramundali to Bhubaneswar (Ch....
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....idanasif Cuttack). 1,368.00 4 Bidanasi (Cuttack)-Nuapada (Cuttack) 132 KVDC link line with bay Extension (13.6 Kms.) 880.00 Total 9,156.00 lakh (emphasis supplied) 4. None of the licensees/other interested persons are shown to have made representation against any of the schemes including the one mentioned at item No.2 of notification dated 30.5.1991 and item No.1 of notification dated 30.1.1996 and the Board executed the same without any objection. 5. After 14 years and 6 months of publication of the schemes, Human Resources Development and Management Trust of India (for short, 'the Trust') (predecessor of respondent No.1), who had purchased some parcels of land in Mauza Andharua, Tahsil Bhubaneswar, District Khurda vide sale deed dated 30.10.2005 raised objection against execution of the scheme mentioned at item No.2 of notification dated 30.5.1991 on the ground that two of the transmission towers proposed to be erected would cross the building constructed by it. The Trust also requested appellant No.1 to shift the transmission towers and line to an alternative site. 6. Appellant No.1 and its officers did not accept the objection/representation of the Trust....
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....08, the relevant portions of which are extracted below: "17. As per the affidavit filed today, the entire work on either side on the suit land was completed and, therefore, the argument of the learned counsel for the respondent was that the petitioner is not entitled to any order of injunction as every work sought to be injuncted was already completed. 18. Further when once no objection was raised within the statutory period, the subsequent belated correspondence by any officer of Respondent may not act as an estoppel against them because such officer is not entitled to forgo the statutory period of prescribed for receiving objections or to extend it or even to waive it. Moreover, after having purchased the land in December, 2005, the building was constructed below the power line by petitioner only in July 2006, after knowing fully well that negotiation with officers of respondent failed. 19. In these circumstances, even assuming for argument sake, that there is some illegality in the Scheme, then what is provided in Section 12 of the Indian Electricity Act is only compensation and not dismantling of the entire line of nu....
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.... merit consideration. The learned Single Judge also adverted to the issue of public interest and observed: "The paramount public interest in this case cannot be lost sight of. On one hand, the larger interest of the State involving lakhs of electricity consumers spreading over several districts of Orissa and on the other hand the purported inconvenience of a few hundred of students. Time and again, the apex Court has deprecated the practice of the educational institutions acting in violation of law and committing irregular and illegal acts and thereafter, taking plea of career of the students. I am shocked that in the case at hand even the threat of law and order situation by the students has been argued. Plight of the students is apparently due to improper action of the petitioner. If the career of the students is at stake, the petitioner is solely and wholly responsible for it." 12. Having failed to convince the learned Single Judge to entertain its prayer, respondent No.1 filed Writ Appeal No. 393 of 2010. During the pendency of the appeal, respondent No.1 filed an application in the name of the Trust for withdrawal of the suit. The trial Court allowed the a....
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....otifications because the landowner(s) had neither made any representation nor filed objections. Shri Rao emphasized that the approval of the Central Government was not necessary because cost of the scheme was less than rupees hundred crores and as per notification dated 28.12.1995 issued by the Government of India, concurrence of the Central Electricity Authority was required only if the cost of the scheme was more than hundred crores. Learned senior counsel then argued that the second writ petition filed by respondent No.1 should have been dismissed by the High Court by invoking the doctrine of res judicata because similar prayer had been rejected in the earlier round of litigation. Learned senior counsel referred to affidavits filed by Shri Amar Nath Mohanty, Assistant General Manager, EHT(Construction) before the High Court to show that none of the three alternative proposals were feasible. Shri Rao also invited the Court's attention to additional affidavit dated 26.4.2013 of Shri Amar Nath Mohanty to show that height of the two towers LOC 36 and LOC 37 has been so raised that the line will be 4.58 meters (14.56 feet) above the existing line and there will be a clearance of 9 me....
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.... the Board or a Generating Company, as the case may be, may prepare one or more schemes, relating to the establishment or acquisition of generating stations, tie-lines, sub-stations or transmission lines, as are referred to in clause (e) of section 18 or clause (c) of sub-section (1) of section 18A, as the case may be. (2) The Board or, as the case may be, the Generating Company which has prepared a scheme may, sanction such scheme either generally or in respect of any part of the area specified in the scheme and where a scheme has been sanctioned in respect of any part of the area, such scheme may subsequently be sanctioned in respect of any other part of that area: Provided that where the scheme is of the nature referred to in subsection (1) of section 29, the scheme shall not be sanctioned (generally or for part of an area) by the Board or the Generating Company except with the previous concurrence of the Authority. (2A) The Board or, as the case may be, the Generating Company shall, as soon as may be after it has sanctioned any scheme which is not of the nature referred to in section 29, forward the scheme to the Autho....
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....Government. (5) The Authority may give such directions as to the form and contents of a scheme and the procedure to be followed in, and any other matter relating to, the preparation, submission and approval of such scheme, as it may think fit. (6) In respect of any scheme submitted to the Authority for its concurrence under sub-section (1), the Board or, as the case may be, the Generating Company shall, if required by the Authority so to do, supply any information incidental or supplementary to the scheme within such period, being not less than one month, as may be specified by the Authority." 17. An analysis of the above reproduced provisions makes it clear that the Board or the Generating Company can prepare one or more schemes for efficient performance of its duties under the Act. Such schemes may relate to the establishment or acquisition of the generating stations, tie-lines, sub-stations or transmission lines. By notification dated 28.12.1995 issued by the Government of India in the context of Section 29(1) of the Act, concurrence of the Central Electricity Authority was made mandatory for the schemes involving capital expenditure of h....
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.... had stepped into the shoes of a person who had no grievance against the scheme framed by the Board or execution thereof by appellant No.1 and proceeded to decide the matter as if execution of the scheme has commenced after construction of buildings by respondent No.1. This is the first fatal flaw in the approach adopted by the Division Bench of the High Court. 20. The exercise undertaken by the High Court for ascertaining the availability of alternative route through which the transmission line could be routed was totally unwarranted and half waked consideration of the affidavits filed on behalf of the appellants has resulted in miscarriage of justice. As noted above, the scheme was notified on 30.5.1991 and was modified on 30.1.1996. During this period, respondent No.1 was not in picture. Admittedly, the Trust had purchased the land after more than 14 years and 6 months of initial publication of the scheme. Therefore, neither the Trust nor respondent No.1 had the locus to seek a mandamus for re-alignment of the route and the Division Bench of the High Court committed serious error by ordaining appellant No.1 to shift the transmission towers from their present site completely ign....
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....e transmission line in the proposed route and eight Nos. of towers already constructed have to be dismantled/abandoned. The cost of such diversion will involve around Rs. 1 Crore excluding the amount of compensation payable to the land owners over whose land the line and towers are to be erected. (b) As per the proposal the Alternative Common to both the proposals can not be treated as a full-fledged Alternative unless this is worked out along with the proposed Alternative 1. This proposal will involve erection of six (6) new towers along with the transmission line and 5 Nos. of constructed towers have to be abandoned/dismantled. The approximate cost of this diversion will be little less than Rs.l crore besides compensation payable to owners. 10. That the proposal as suggested by the Appellant if executed, will pass over many private lands and buildings under construction and also over jungle lands and some Anabadi lands of the State Government as would be evident from the land particulars filed herewith as Annexure J/1 series which has been obtained by the Opp. Parties from the office of the Revenue Inspector, Chandaka, Dist- Khurda. On further verification it....
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....sed through the compound of the Appellant ASBM long since which is existing and ASBM has later constructed its building and structures near the line." 21. The reasons assigned by the concerned officer of appellant No.1 for not accepting the alternatives suggested by respondent No.1 were germane to the inability of appellant No.1 to change the alignment of the route and shift the transmission towers and the Division Bench of the High Court committed serious error by entertaining the prayer made by respondent No.1. 22. A somewhat similar question was considered by this Court in Ramakrishna Poultry (P) Limited v. R. Chellappan (2009) 16 SCC 743. The appellant in that case had purchased land in June, 2004/November, 2004. At about the same time, the Power Grid Corporation of India Ltd. took up the work of construction of 400 KV Perambalur-Pugalur D/C line as part of Neyveli Thermal Station Expansion Project for evacuation of electricity generated therein. This required installation of transmission towers at various locations, some of which were private lands including the land belonging to the appellant. In the first round of litigation, the High Court directed District Magistrate to ....
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....ehalf of the appellant Company, could not be practically achieved, we are left with the next best solution i.e. to increase the clearance between the lowest point of the sag of the transmission cable and the topmost portion of the appellant's poultry sheds. It should not also be forgotten that from the point of the sag on both sides the cable moves upwards and the clearance becomes even greater on both sides of the lowest spot. During the hearing we had asked Mr Tripathi to confirm with the engineers of the Power Grid Corporation to explore the possibility of raising the height of the towers even further to lessen the damage, if any, that may be caused to the egg-laying capacity of the layers in the appellant's poultry farm." (emphasis supplied) 23. We also agree with Shri P. P. Rao that the learned Single Judge of the High Court had rightly refused to entertain the second writ petition and the Division Bench committed an error by setting aside the order passed by him. A careful reading of the relief clauses of the two writ petitions makes it clear that substantially similar prayer had been made in both the cases. The first petition which could be treated as one filed under Articl....
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....ed the land only in December, 2005 and the building was constructed in July, 2006 knowing fully well that negotiations with the officers of appellant No.1 had failed. The learned Single Judge further observed that it would be against public interest to pass an order which may necessitate dismantling of the entire line of numerous towers erected by spending public money. Even after dismissal of the petition filed under Article 227 of the Constitution and its failure to persuade the Court to sustain the order of injunction passed by the trial Court, respondent No.1 kept the suit pending and, at the same time, filed the second writ petition. This was a clear case of abuse of the process of the Court. It is a different thing that even in the second round, respondent No.1 could not persuade the learned Single Judge to entertain its prayer. The suit was withdrawn only after the writ appeal was entertained by the Division Bench of the High Court. This shows that respondent No.1 had availed parallel remedies and gave up its pursuit before the Civil Court only after the Division Bench of the High Court indicated its willingness to hear the writ appeal on merits. 26. The judgment in S.J.S. ....
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.... the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa (1964) 2 SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 [Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110]. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 2....