ORISSA HIGH COURT: CUTTACK. WRIT APPEAL NO. 393 OF 2010 From the judgment dated 26.10.2010 passed by the Learned Single Judge in W.P. (C) No. 20659 of 2009. ----------- Asian School of Business Management Trust …… Appellant -Versus- Orissa Power Transmission Corporation Ltd. and others …… Respondents For Appellant : M/s. R.K.Rath, Sr. Advocate, U.C.Pattnaik, S.D. Mishra & S. Patnaik. For Respondents: M/s. N.C.Panigrahi, Sr. Advocate & N.K. Tripathy (for respondents 1 to 3) Addl. Standing Counsel, (for respondents 4 & 5) -------------------------------- Date of Judgment: 07.11.2012 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE B.P.DAS AND THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J. This writ Appeal has been preferred by the appellant -Asian School of Business Management Trust (for short, ‘the ASBM Trust’) against the judgment and order dated 26.10.2010 passed by the learned Single Judge in W.P. (C) No. 20659 of 2009 by which the writ petition filed by the appellant was dismissed . In the said writ petition, the appellant sought for a direction to the respondent no. 1, i.e., Orissa Power Transmission Corporation Limited (for short, ‘the OPTCL’) not to make any construction of transmission tower/line within the premises of the appellant – institution and to take a final decision with regard to re-routing/realignment/diversion of 220/132 KV Mendhasal - Bidanasi over head line, within a stipulated time. 2. The chronology of events, which gave rise to the lis may be described as follows: On 30.12.2005, for promoting high quality management education, by establishing a management college, the appellant – Trust purchased Ac. 4.500 decimals of land in mouza – Andharua, P.S. Chandaka, District – Khurda by three registered sale deeds executed by the owner of the land. On 13.1.2006, the Tahasildar, Bhubaneswar vide a land use and location certificate certified that the land purchased by the Trust is non-agricultural and it can be used for the purpose of establishment of educational institution. On 30.1.2006, while the construction was in progress, the respondent no. 3 came to the work site of the appellant and requested the Managing Trustee of the appellant institution not to make any construction within 35 meters of the 220/132 KV Mendhasal- Bidanasi over head line which is to cross near the boundary of the premises of the appellant. On 9.2.2006, the respondent no. 3 for the first time intimated to the appellant that the said 220/132 KV line is to cross over part of the land of the appellant. On 14.2.2006, all on a sudden, the staff of the respondent no. 1 led by one officer, who identified himself as the S.D.O., Electrical, entered into the premises 2 of the ASBM Trust and wanted demarcation of a spot inside the boundary wall of the appellant’s land on North-Eastern side for erection of the Extra High Tension Tower for drawing the overhead line. On 17.2.2006, the appellant called upon the respondent no. 1 for holding a discussion and, accordingly, a discussion was held in the chamber of respondent no. 1 in presence of other respondents and other officials. During the course of discussion, the appellant’s case is that the respondent no. 1 could understand the problem and as alternatives were available, the said respondent no. 1 instructed for reorientation of the tower footing. However, no follow up step was taken by the respondents for which the appellant could not take any step for diversion of the road on the northern side of the appellant’s land. . Thereafter, on 4.3.2006, the respondent no. 2 intimated the appellant that as the appellant has not taken steps for shifting of the village road, they are going to erect the tower at pre-planned spot inside the boundary area of the appellant. On 6.3.2006, the appellant replied the respondent no. 2 that they would have carried their part of obligation had the respondents confirmed the same. On 8.3.2006, it is alleged by the appellant that the workers of the respondent nos. 1 to 3 made forcible attempts to dig the earth for the construction of tower base thereby infringing the legal rights of the appellant. The appellant apprehending that such construction would pose immediate danger to the life of the students, staff employees and others, moved the learned Civil Judge, (Junior Division), 3 Bhubaneswar in C.S. No. 72 of 2006 and also moved an application, i.e., I.A. No. 87 of 2007 under Order 39, Rules 1 and 2 C.P.C. On 10.4.2006, as per the discussion with the respondents regarding re- routing, the appellant engaged one Sri R.P. Mohapatra, retired Chief Engineer of GRIDCO and a reputed consultant in power sector, to give a report and on 10.4.2006, he gave a report indicating that to avoid demolition of a part of the institution, the re-routing would require four towers against original three towers of OPTCL route. On 26.4.2006, the learned Civil Judge (Junior Division), Bhubaneswar passed order allowing the interim application, i.e., I.A. No. 87 of 2006 and restraining the OPTCL to enter into the appellant’s land and to construct any tower over the said land till disposal of the suit. Being aggrieved with the said order, the OPTCL preferred appeal, being FAO No. 40/33 of 2006, in the court of the leaned District Judge, Khurda which was subsequently transferred to the court of the learned Additional District Judge, F.T.C. No.3, Bhubaneswar and the said appellate court set aside the order dated 26.4.2006 of the learned Civil Judge (Junior Division), Bhubaneswar. On 10.10.2008, the appellant challenged the said order of the appellate court before this Court by filing a writ petition, being W.P. (C) No. 14806 of 2008. On 15.10.2008, this Court passed an interim order in Misc. Case No. 12887 of 2008 to the following effect: “In the meantime, the parties are directed to send their representatives to try and find out whether any alternative remedy can be made available, which may be acceptable by both the parties and if so, in that 4 condition. The parties shall visit the site by next Monday (20.10.2008)”. On 18.10.2008, pursuant to the aforesaid interim order dated 15.10.2008 of this Court, the OPTCL intimated the appellant that there will be spot verification on 20.10.2008 and requested the appellant to depute its representative to be present at the spot by 11.00 A.M. on 20.10.2008. On 21.10.2008, pursuant to the joint spot verification conducted on 20.10.2008, the consultant representative of the appellant submitted his report stating that both parties were convinced during the site meeting on 20.10.2008 that in view of the construction of the structures inside the premises of the appellant, no tower can be placed inside the premises (location-B of the original alignment) and the revised alignment suggested after survey in the year 2006, is feasible. On 27.10.2008, this Court passed another order directing for spot verification by both the parties. On3.11.2008, the OPTCL intimated the appellant that as per order of this Court in W.P. (C) No. 14806 of 2008, there will be spot verification on 10.11.2008 and requested the appellant to depute its representative to be present at the spot by 11.00 A.M. so that joint spot verification can be made. On 10.11.2008, joint verification was again conducted by the representative of the OPTCL and the representative of the appellant, who were present and joint verification report was prepared in which in paragraphs – 4 and 6, the OPTCL suggested that detail survey including profile and land schedule has to be carried out by the ASBM Trust to determine actual location of the towers. 5 However, the OPTCL has never communicated any decision to the appellant as to how to proceed in the matter pursuant to the verification report. On 21.11.2008, on the basis of the assertion of the respondents, this Court dismissed the writ petition, being W.P. (C) No. 14806 of 2008 with the following observations: “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”. “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 numerous towers erected at the heavy cost of public money. Moreover, the scheme involves public interest. When private interest is at stake and especially when compensation is awardable, no injunction could be granted especially when work sought to be injuncted has already been completed. Viewed in this angel, I am not able to entertain the writ petition and I find no error in the effect of the order of the lower appellate Court”. On 9.3.2009, the appellant acted upon the suggestions of OPTCL as per joint verification report dated 10.11.2008 and completed the route alignment survey work through M/s. Pranit Construction, a licensed registered surveyor/Contractor on 10th and 11th January, 2009 and the proposed route alignment was forwarded to the OPTCL by the consultant of the appellant and it was also intimated to the OPTCL that the profile survey and tower spotting will be carried out after approval of the proposed route alignment by the OPTCL. On 21.3.2009, the said meeting was rescheduled and was held on 20.3.2009 when the appellant was informed that a final decision 6 regarding approval of the route alignment survey report can be taken only by the respondent no. 1 and, accordingly, the appellant requested the respondent no. 1 to take a final decision at the earliest to resolve the matter. On 29.10.2009, since the respondent no. 1 did not communicate any decision to the appellant for a long time, by letter dated 29.10.2009, the appellant again requested the respondent no. 1 to take a decision in this regard. The contents of the said letter are as follows: “Kindly refer to our Letter No. ASBMT /DS/158/08-09 dated 22.1.2009 and ASBMT/DS/183/08-09 dated 21.3.2009 on the above subject (copies enclosed for your ready reference). We had requested for re-routing of the Mendhasal- Bidanasi line as per joint inspection report dated 14.1.2009. We had also requested you to finalize the tower location based on which the net cost can be estimated. We request you to kindly take the decision in this regard at your earliest so that this matter can be resolved”. On 6.11.2009, with reference to the letter dated 22.1.2009, wherein the appellant had forwarded the report dated 14.1.2009 of the consultant with a map for re-routing of the tower line, the OPTCL intimated the appellant that the Director (Engineering), OPTCL will hold a meeting on 12.11.2009 in his chamber regarding construction of balance works of 220 KV D.C. line from Mendhasal to Bidanasi and requested the appellant to attend the said meeting so that decisions can be taken for construction of the line. On 9.12.2009, as per the discussion and decision taken in the said meeting on 12.11.2009, the appellant advised its consultant to expedite the profile survey work for spotting new tower location as per the route 7 alignment survey and the appellant intimated the said fact to the Director (Engineering), OPTCL. On 31.12.2009, coming to learn that the OPTCL while inviting the appellant for discussions and meetings regularly and the appellant is desperately acting upon the suggestions of OPTCL in carrying out the survey work for re-routing/alignment of the transmission line, simultaneously OPTCL is pursuing with the respondent nos. 4 and 5 to forcefully construct the transmission tower inside the premises, the appellant filed writ petition, being W.P. (C) No. 20659 of 2009. In the meanwhile, during pendency of the writ petition, as per the decision taken in the meeting conducted by the Director (Engineering) on 12.11.2009, a detail profile survey was conducted and the route alignment, profile survey and tower spotting to facilitate completion of the 220 KV line from Mendhasal to Bidanasi was completed and by letter dated 4.3.2010, the appellant forwarded to the Director (Engineering) of the respondent, the technical report, topo map, tower profile and tower schedule prepared by the reputed Engineers and consultants and requested to do the needful in the matter. On 8.9.2010, the appellant sent a reminder to the respondents to take steps for re-routing of the tower line as per the survey report submitted vide letter dated 4.3.2010. The learned Single Judge, however, by the judgment dated 26.10.2010 dismissed the writ petition. Being aggrieved by the said judgment dated 26.10.2010 of the learned Single Judge, the appellant has preferred the present Writ Appeal. 8 3. The main thrust of argument advanced by Mr. R.K. Rath, learned senior counsel appearing on behalf of the appellant is that the judgment and order of the learned Single Judge is unsustainable in the eye of law and is liable to be set aside on the following grounds: (i) There is no valid sanctioned scheme prepared, sanctioned and concurred by the appropriate authority under sections 28 and 29 of the Electricity (Supply) Act, 1948. (ii) The legality/validity of the purported scheme is unacceptable. (iii) The claim of the respondents with regard to the validity of the said scheme is misleading. (iv) The purported scheme not having been approved/ concurred by the competent authority, as per the provisions of section 42 of the Electricity (Supply) Act, 1948, the respondents have no power to carry on the construction of the transmission line without complying with the provisions of section 12 of the Indian Electricity Act, 1910. (v) The respondents having not produced the material documents and attempted to suppress the same, it amounts to fraud on Court. Mr. Rath further submitted that in such circumstances, the observations of the Learned Single Judge in paragraphs 2 and 15 of the impugned judgment suffer from perversity as there was no such material to form the basis of the said findings. He also submitted that the learned Single Judge committed serious error of law by observing 9 that the writ petition is not maintainable on the ground that the appellant had filed C.S. No. 72 of 2006 seeking permanent injunction against the respondents 1 to 3 and restraining them from erecting/constructing any transmission line over the suit land, since the issue in the suit was only with regard to grant of injunction and not the validity/legality of the scheme, which is the root of the matter and without seeing the scheme, the learned Single Judge has erroneously observed that the scheme was duly concurred by CEA under section 31 of the Electricity (Supply) Act, 1948. It was further contended by him that the learned Single Judge has erroneously held that since this Court has already considered the issue as to the appellant’s right to oppose the construction of transmission line over its land while disposing of the writ petition, being W.P. (C) No. 14806 of 2008 on 21.11.2008 and the same has attained finality, the petitioner (appellant herein) is stopped from raising the same issue again in the writ petition , without considering that the above writ petition was filed only on the question of temporary injunction and there was no challenge to the purported scheme. The learned Single Judge has, therefore, erroneously observed that undisputedly, the relief claimed in the earlier writ petition, being W.P. (C) No. 14806 of 2008 and in the present writ petition is one and the same and the cause of action is also same. Though temporary injunction was the sole issue in the earlier writ petition and action of the respondents in the absence of mandatorily sanctioned scheme was not at all the 10 subject-matter of the decision in the said writ petition, the learned Single Judge also incorrectly assumed that there was a valid/sanctioned scheme duly publicized under section 29 of the Electricity (Supply) Act, 1948 though the respondents had not produced any document before the Court pertaining to the purported scheme. 4. Mr. Panigrahi, learned senior counsel appearing for the respondents 1 to 3, on the contrary, relying upon the counter affidavit filed by them, contended that both the writ petitions and the present Writ Appeal are not maintainable being hit by the principles of res judicata in view of the judgment of this Court dated 21.11.2009 passed in the earlier writ petition, being W.P. (C) No. 14806 of 2008. He further contended that during pendency of the suit, the writ petition and the Writ Appeal arising therefrom, is not maintainable. It was the assertion that since the respondents are implementing a sanctioned scheme under section 29 of the Electricity (Supply) Act, 1948, they have power to carry on that construction of the line over the land of the appellant under section 42 of the Act. In addition to the above, it has been contended by him that the appellant has not come to the Court with clean hands and even though the appellant has withdrawn the suit, it is not entitled to any relief and as per the earlier judgment of this Court, the licensee has a right to carry on construction on any land on the basis of the scheme published under section 29 of the Electricity (Supply) Act, 1948. 11 5. To appreciate the rival contentions made by the parties, it would be appropriate to quote sections 28 and 29 of the Electricity (Supply) Act, 1948, which is as hereunder: “28.Preparation and sanctioning of scheme.-(1) For the efficient performance of its duties under this Act, 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 sub-section (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 Authority and, if required by the Authority so to do, supply to the Authority any information incidental or supplementary to the scheme within such period as may be specified by the Authority. (3) Every scheme sanctioned under this section shall be published in the Official Gazette and in such local newspapers as the Board or, as the case may be, the Generating Company may consider necessary.” “29. Submission of schemes for concurrence of Authority, etc. – (1) Every scheme estimated to involve a capital expenditure exceeding such sum, as may be fixed by the Central Government , from time to time, by notification in the Official Gazette, shall, as soon as may be after it is prepared, be submitted to the Authority for its concurrence. (2) Before finalization of any scheme of the nature referred to in sub-section (1) and the submission thereof to the Authority for concurrence , the Board or, as the case may be, the Generating Company shall cause such 12 scheme, which among other things shall contain the estimates of the capital expenditure involved, salient features thereof and the benefits that may accrue therefrom, to be published in the Official Gazette of the State concerned and in such local newspapers as the Board or the Generating Company may consider necessary along with a notice of the date, not being less than two months after the date of such publication, before which licensees and other persons interested may make representations on such scheme. (3) The Board or , as the case may be, the Generating Company may, after considering the representations, if any, that may have been received by it and after making such inquiries as it thinks fit, modify the scheme and the scheme so finally prepared (with or without modifications) shall be submitted by it to the Authority along with the representations. (4) A copy of the scheme finally prepared by the Board or, as the case may be, the Generating Company under sub-section (3) shall be forwarded to the State Government or State Governments concerned: Provided that where the scheme has been prepared by a Generating Company in relation to which the Central Government is the (competent government or one of the competent governments,) a copy of the scheme finally prepared shall be forwarded also to the Central 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”. 6. It appears from the records produced that no scheme or copy thereof was produced either in the suit or in the writ petition in which the impugned order has been passed. 13 7. In course of hearing of the Writ Appeal, on 18.2.2011, this Court passed the following order: “18.2.2011. Heard in part. Put up on 23.2.2011 at 3.00 P.M. on which date, Shri N.C. Panigrahi, learned counsel for the respondents, shall produce the full details of the scheme and the plan, which were stated to be kept in the office of the Chief Engineer for perusal of any person interested to file a representation with regard to the gazette notifications made in 1991 as well as in 1996 as per Annexures-B/1 and C/1 to the counter affidavit. Let a free copy of the order be handed over to Shri Panigrahi”. Pursuant to the above order, an affidavit was filed on behalf of the opp. parties 1 to 3 (respondents 1 to 3) on 22.2.2011 stating as follows:- “That in obedience to the direction of this Hon’ble Court dated 18.2.2010 in the aforesaid case, the Scheme published in the year 1991 as well as 1996 and the necessary connected file and papers were searched and only original copy of the Gazette Notification published in the year 1991 and 1996 which are Annexures – C/1 and D/1 attached to the counter affidavit of O.P.Nos. 1 to 3 were available and no other papers and file could be traced out since the publications were made during the period of Orissa State Electricity Board (OSEB)”. Subsequently, a map has been annexed to the affidavit filed by the opp. parties 1 to 3 on 29.3.2011 making a statement that in accordance with the scheme, gazette notifications were made. The scheme, however, was neither produced by the opp. parties, who were defendants in the civil suit nor in the writ petition from which this Writ Appeal arises. It, therefore, transpires that as per section 28 (3), the scheme sanctioned under the said provision has not been published in the official gazette nor such publication in local newspaper has been 14 made as no such material has been produced before the Court. It may be noted that a statement has been made in the counter affidavit that a scheme for construction of 220 KV DC line