(1) wp8028-11-3706-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8028 OF 2011 Namdev Narayan Chaudhari and others PETITIONERS VERSUS The State of Maharashtra and others RESPONDENTS WITH WRIT PETITION NO. 3706 OF 2011 Santosh Chandrakant Jawale and others PETITIONERS VERSUS The State of Maharashtra and others RESPONDENTS ..... Mr. Prasanna N. Kutti, advocate for the Petitioners in both the petitions. Mr. V.D. Rakh, A.G.P. for the Respondent-State in both the petitions. Mr. S.M. Godsay, advocate for Respondent No.3. Mr. Alok Sharma, Assistant Solicitor General for Respondent No. 4. Mr. P.V. Mandlik, Senior Advocate, instructed by and with Mr. K.C. Sant, advocate for Respondent No. 5. ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 18th NOVEMBER, 2011 ORAL ORDER: 1. The petitioners have approached this Court praying for issuance of a writ of mandamus or any (2) wp8028-11-3706-11 other writ, directing the Respondent No. 3 to shift the tower and construction from the land of the petitioners elsewhere and not to carry on any work in the lands of the petitioners. 2. It is the basic contention of the petitioners that the electric line which is being erected for supplying it to Respondent No. 5 is being taken illegally through the lands of the petitioners. 3. The learned counsel appearing for the petitioners submits that unless the consent of the petitioners is obtained, the towers could not have been erected on the lands of the petitioners and the electric line could not have been laid therein. Learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of "Chandu Khamaru vs. Nayan Malik and others", reported in CJ-2011-1-553, in support of his contention that unless a prior consent of owner of the land is obtained, the work which is being carried out by the respondents is not permissible. 4. On the last occasion, without going into the (3) wp8028-11-3706-11 legal aspects of the matter, we found that in view of the judgement of the Apex Court in the case of "Chandu Khamaru vs. Nayan Malik and others" (supra), wherein the Apex Court observed thus : "We.... dispose of the Writ Petition of respondent nos. 1 to 3 with the direction that the distribution licensee will find out whether there is any other way in which electric line can be drawn for supply of electricity to the house of the appellant, other than the disputed passage in Dag Nos. 406, 407 and 409. If there is no other way to supply electricity to the house of the appellant, the distribution licensee will follow the provisions of sub-section (2) of Section 67 of the Electricity Act, 2003 for carrying out the work for supply of electricity to the house of the appellant." it would be appropriate to direct the Electrical Inspector, Jalgaon to inspect the spot in question after giving notice to all the parties and submit his report. 5. Accordingly, the Electrical Inspector, I.E. & L. Department, Jalgaon has submitted his report on 15th November, 2011. The Report states thus : (4) wp8028-11-3706-11 "1) 132 KV transmission line work completed including erection of towers and stringing of conductor upto tower No. 26 from 220/132 KV Bambhori Sub-Station to 132/33 KV Sub- Station of respondent No. 5. 2) Tower No. 27 is not erected at site. 3) Tower Nos. 28, 29 & 30 Tower erection work completed. 4) Stringing from tower No. 30 to Sub- Station gantry of respondent No. 5 completed. 5) Stringing from tower No. 26 to 30 not completed. 6) Railway crossing permission between tower No. 26 & 27 granted by Western Railway Authority, Mumbai Central, Railway traffic block and engineering supervision charges for route already implemented and payments paid by the respondents. 7) The petitioner (Mr. Santosh Jawale) suggested alternative route from tower No. 23/24 to the mentioned "Jains" in map is already submitted to Hon'ble High Court, A'bad, which is owned by different persons and is not a JISL premises. 8) The 132 KV line routes suggested by petitioner before Hon'ble High Court as line in it crossed through several Gat Nos in green zone as well as yellow zone and covers the land of more persons and thus more expenditures is required for erection of line as per alternative routes. 9) Alternative route suggested by the petitioner is not feasible due to obstructions of JISL factory building. 10) For alternative route suggested by the petitioner new permission for Railway crossing is also required to be obtained from Railway Authorities. 11) Foundations for tower Nos. 25, 26, 28, 29 & 30 will be of no use if power line is erected as per route suggested by the petitioner. Expenditure & material incurred for foundation of above towers will be a national loss. Dismantling of the above (5) wp8028-11-3706-11 said towers will be very difficult because steel structure already welded together. 12) The location where the petitioner had shown the terminal point of alternate route in map (where the petitioner mentions"Jains") submitted to Hon'ble High Court Aurangabad does not terminate at 132 KV Sub Station of Respondent No. 5 but it is some other persons lands. From that point to 132 KV Sub Station of Respondent No. 5, yellow zone exists. Considering the above facts :- 1) Alternative routes suggested by the petitioners are not feasible. 2) The route which is already being implemented by Respondent Nos. 3 & 5 is the most suitable route." 6. The Report was placed before us by the learned A.G.P. yesterday. We had thereupon directed to give copies of the Report to all the parties and post the matter for hearing today. 7. The main reliance of the learned counsel for the petitioners is on the aforesaid judgement of the Apex Court i.e. "Chandu Khamaru vs. Nayan Malik and others". In the said case, the appellant therein was not granted electricity connection by the Distribution Licensee and therefore, he had approached the High Court. The High Court, by its order dated 23rd September, 2004, directed the (6) wp8028-11-3706-11 Distribution Licensee to give supply of electricity to the appellant before the Apex Court. The Respondent Nos. 1 and 3, before the High Court, filed Writ Petition No. 345/2005, contending therein that the electricity supply was given to the appellant by the electric line taken through the passage which belonged to them and not to the appellant. The learned Single Judge of the High Court directed disconnection of the electricity supply given to the appellant. Being aggrieved by that decision, the appellant therein filed intra court appeal before the Division Bench of the High Court. The Division Bench found that until the private dispute between the appellant and the respondent Nos. 1 to 3 therein was resolved in the civil court, the Distribution Licensee could not supply electricity to the house of the appellant. In this background, the observations which have been reproduced hereinabove by us were made by the Apex Court. 8. It would also be relevant to refer to the Works of Licensees Rules, 2006. Sub-Rule (1) of Rule 3 of the Works of Licensees Rules, 2006 reads thus : (7) wp8028-11-3706-11 "(1) A licensee may - (a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land; (b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of any overhead line on any building or land or having been so fixed, may alter such support; Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works; Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered." 9. These Rules have been framed in view of the enabling provisions of Sub-Rule (2) of Rule 3 of the (8) wp8028-11-3706-11 said Rules of 2006. The perusal of the said Rule would reveal that a licensee is authorised to carry out the works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land. The Proviso of the said Rule would reveal that if the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate. Sub-Rule (2) of the Rule 3 of the said Rules of 2006 would reveal that the District Magistrate is empowered to determine the compensation for such work to be carried out, which shall be subject to revision by the Appropriate Commission. 10. Undisputedly, in the present case, the respondent Licensee has obtained the prior permission from the District Magistrate for carrying out the (9) wp8028-11-3706-11 works in question. 11. Apart from that, the perusal of the Report of the Electrical Inspector (I.E. & L. Department) would clearly reveal that the alternative routes suggested by the petitioners are not feasible and the route which was already implemented by Respondent Nos. 3 and 5 was the most suitable route. We may reiterate that the High Court does not possess the expertise in the technical matters. When a report by a competent officer of the State Government does not support the case of the petitioners, we, in our extraordinary jurisdiction under Article 226 of the Constitution of India, cannot sit in an appeal over the expert's opinion. In that view of the matter, we find that no case is made out for interference. Both the writ petitions are, therefore, rejected. 12. At this stage, learned counsel appearing for the petitioners prays for stay of this order, for a period of six weeks from today. In view of the statutory provisions and in view of the Report of the competent officer of the State Government i.e. (10) wp8028-11-3706-11 Electrical Inspector (I.E. & L. Department), we are not inclined to consider the prayer as made by the learned counsel for the petitioners. The prayer is rejected. Needless to state, the petitioners would be at liberty to avail the remedies as are available under the relevant law and the rejection of these petitions would not come in his way of availing such remedies. [M.T. JOSHI, J.] [B.R. GAVAI, J.] npj/wp8028-11-3706-11