Case: Orissa Power Transmission Corp.Ltd Vs. Asian School Of Business Mgmt.Trust &amp;Ors

2. In exercise of the power vested in it under Section 29 of the Electricity (Supply) Act, 1948 (for short,Act?), Orissa State Electricity Board (for short,Board?) (predecessor of appellant No.1) framed about 50 transmission schemes, which were notified on 30.05.1991 to enable the licensees and other interested persons to make representations. The notification was published in official gazette dated 20.7.1991. For the sake of reference, the relevant portions of the notification are extracted below:?The Orissa GazetteEXTRAORDINARY PUBLISHED BY AUTHORITY No.857 CUTTACK, SATURDAY JULY 20, 1991 / ASADHA 29, 1913ORISSASTATEELECTRICITY BOARDBHUBANESWARNOTIFICATIONThe 30th May 1991No.4459In accordance withof Electricity (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,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 LINESSl. No.Name of the Scheme(Rs.In lakhs)(1)(2)(3)2220 KV DC line from Meramundali to Bhubaneswar (Chandaka) 150 Kms @14.47 lakhs/Km.2170.50(emphasis supplied)3. Some of the aforesaid schemes were modified vide notification dated 30.01.1996, which was also published in Official Gazette dated 15.2.1996.That notification reads as under:?The Orissa GazetteEXTRAORDINARY PUBLISHED BY AUTHORITYNo.177 CUTTACK, THURSDAY FEBRUARY 15, 1996 / MEGHA 26, 1917ORISSASTATEELECTRICITY BOARDBHUBANESWARNOTIFICATIONThe 30th January, 1996No. 589In partial modification of Schemes against Sl.No. 2 of Gazette Notification No. 857, dated the 20th July, 1991 and in accordance with Section 29of Electricity (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,7 within two months from the date of publication. Full details of the scheme and the plan may be seen in the office of the Chief Engineer (Transmission Project), O.S.E.B., Bidyut Bhawan, Sahidnagar,on any working day during office hours.Name of the Scheme :Strengthening of transmission network in and around Chandaka Command area (Bhubaneswar) and Bidanasi (Cuttack) Command area as per the detail scope furnished below:Necessity of the SchemeTo transmit power from the main pooling centre at Meramundali to Chandaka/Mendhasai Command area.Establishment of new 220 KV network at Bidanasi (Cuttack). Improve the reliability of power supply in Chandaka (Bhubaneswar) Command area.Improvement of voltage profile in Bhubaneswar, Cuttack, Puri, Khurda, Jagatsinghpur Transmission System Scope of WorkSl.No.Scope of SchemeApproximate estimated cost in lakhs of rupees1(bhubaneswar) 400 KV DC line. ( 110 Kms. ) with 220 KV bay extension at Chandaka and(Cuttack) 220 KV DC line with bay Extension(25 Kms.).990.003Construction of 2 x 100 MVA, 220/132 KV substation at Bidanasif Cuttack).1,368.004Bidanasi(Cuttack) 132 KVDC link line with bay Extension (13.6 Kms.)880.00Total 9,156.00 lakhs(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,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, who then filed Civil Suit No. 72 of 2006 in the Court of Civil Judge (Junior Division), Bhubaneswar and prayed for grant of the following relief:?The plaintiff therefore humbly prays that this Honble Court may graciously be pleased to pass a decree declaring that the defendant has no right to enter into the suit schedule property and also pass decree of permanent injunction permanently injunction the defendants from erecting/ constructing any tower on the suit schedule property and decree the suit with cost to the plaintiff.?7. The Trust also filed an application for temporary injunction. The trial Court passedorder dated 9.3.2006 and directed that status quo regarding construction be maintained. That order was made absolute on 26.4.2006 and the appellants were restrained from entering the suit land and constructing any tower. That order was set aside byAdhoc Additional District Judge,Bhubaneswar in FAO (Misc. Appeal) No.40/33 of 2006 decided on 4.10.2008. The Additional District Judge noted that all the towers had already been erected on both sides of the disputed land and, therefore, it is not possible for the appellant to erect any tower leaving the suit land and thereby compromise the public interest. In the opinion of the learned Additional District Judge, the Trust could be compensated by the competent authority.8. The Trust challenged the appellate order in Writ Petition (C) No.14806 of 2008, the prayer clause of which reads as under:?The petitioner therefore, humbly prays that this Honble Court may graciously be pleased to admit the writ application and call for the records from the court below and upon hearing the parties be pleased to issue a writ in nature of Certiorari or any other appropriate writ(s), direction(s) quashing the impugned order dtd. 04.10.2008 passed by the learnedF.T.C. No. 3, Bhubaneswar in F.A.O. (Misc. appeal ) No. 40/33 of 2006 under Annexure9 and restrain the opp. parties from entering the suit schedule property of the petitioner and from erecting/constructing any tower on suit schedule property, pending adjudication of the writ petition.And may pass such other order(s) as deemed just and proper.?9. The learned Single Judge of the High Court dismissed the writ petition vide order dated 21.11.2008, 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 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 angle, 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.?10. After about one year, respondent No.1 filed Writ Petition (C) No. 20659 of 2009 and prayed for grant of the following substantive reliefs:?(I) Directing the Opposite Parties No.1 to 3 not to make any construction of the transmissionthe premises of the petitioner;(II) Directing the Opposite Parties No.1to 3 to take a final decision regardingof the 220/132 KV MendhasalBidanasi over head line within a stipulate time after completion of the profile survey by the petitioner.?11. The learned Single Judge noticed the prayer made in the civil suit, the orders passed by the trial Court, the lower appellate Court and the High Court in Writ Petition No.14806/2008, referred to the judgments of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission and others, AIR 1954 SC 207 , Bombay Metropolitan Region Development Authority, Bombay v. Gokak Patel Volkart Limited and others (1995) 1 SCC 642 , Jai Singh v. Union of India and others, AIR 1977 SC 898 and held that the writ petition was not maintainable because the civil suit was pending before the competent Court. The learned Single Judge then considered whether the second writ petition was barred by res judicata and answered the same in the affirmative by observing that the cause of action for filing the two petitions was the same and identical reliefs had been sought by respondent No.1. The learned Single Judge relied upon the judgments in Naresh Shridhar Mirajkar v. State of Maharashtra and another, AIR 1967 SC 1 , State of Karnataka and another v. All India Manufacturers Organization and others (2006) 4 SCC 683 , Direct RecruitEngineering Officers? Association v. State of Maharashtra and others (1990) 2 SCC 715  and Forward Construction Co. and others v. Prabhat Mandal (Regd.), Andheri and others AIR 1986 SC 391 and held that the prayer made in the second writ petition does not 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 application vide order dated 16.3.2011, which reads as under:?The case record is put up today being advanced by the Plaintiff. Advocate for the Plaintiff files a petition supported by an affidavit praying withdraw the suit on the ground stated therein. Copy served. No objection the petition is raised by the defendants. Heard the learned counsels for the parties on the petition for withdrawal of the suit. Since the plaintiff does not want to proceed with the suit, the petition for withdrawal is allowed and the suit is dismissed as withdrawn.?13. The Division Bench of the High Court reversed the findings recorded by the learned Single Judge on the issue of maintainability of the writ petition by observing that the reliefs claimed in the two writ petitions were different. The Division Bench then referred to Sections 28 and 29 of the Act and held that notifications dated 30.05.1991 and 30.01.1996 were ultra vires the provisions of those sections because the procedure prescribed in those sections had not been followed and concurrence of the competent authority had not been obtained. The Division Bench also referred to interlocutory orders passed by it for production of full details of the scheme and held that the documents produced on behalf of the appellants herein were not sufficient to prove that the scheme had been framed, published and modified in accordance with the provisions of the Act and that in the absence of approval of the Central Government, the scheme cannot be implemented.

Reasoning:
27. The ratio of the above extracted observations is that the Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who hadrespondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained.28. The finding recorded by the Division Bench of the High Court that the scheme was not in consonance with Sections 28 and 29 of the Act is also erroneous. In response to the observation made by the High Court on 25.3.2011, Shri Amar Nath Mohanty filed further affidavit dated 29.3.2011, paragraphs 3 to 6 of which are extracted below:?3. That the nomenclature of the schemes likeMendhasal are only indicative in nature for internal project planning, while actual construction takes place after survey of the line and alignment and tower spotting are finalized in accordance with the notified scheme. These details are kept in the office. In the instant case, the land schedule etc., are not available but the profile of the said portion is available which is enclosed herewith as.4. That there are several examples where the name ofis different from its specific site locations. For example the Chandaka Gridis in Patia Mouza written in brackets as Chandaka Industrial Estate, the "Bargarh Gridin Bhubaneswar is in Kesura Village and Jharsuguda Gridis in Village sarasmala.5. That the line work has been completed from both Mendhasal and Bidanasi end; except this small portion which is left out; the line alignment is already fixed with two remaining towers coming in the area of ASBM. So further change cannot be made.6. That the Appellants in course of arguments have also produced a Map before this Honble Court which has also been annexed by the Respondents asto the Affidavit filed by the Respondents on 25.03.2011 and the said Map clearly discloses that two towers are to be erected on the land of ASBM.?29. In our view, the explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to directof the transmission line on the specious ground ofof the two provisions.