AYAR JIVANBHAI MAHADEVBHAI Vs. TORRENT POWER LIMITED

JUDGEMENT

(1.) Having heard the learned counsel for the appellants and perused the record, we find that the order impugned before the learned Single Judge was passed by the Deputy Collector and Sub- Divisional Magistrate, computing compensation for the damages caused to the land owners as per Sec. 10(d) of the Indian Telegraph Act, 1885, by applying the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "the Act of 2013", for short) by inclusion of factors such as market value of the land, nature of agriculture, nature of tree etc. Before the learned Single Judge, the challenge was about applicability of the Act of 2013 in the matter of determination of damages as per Sec. 10(d) of the Indian Telegraph Act, 1885. The learned Single Judge having noticed the decision of the Division Bench of this Court about the impact of Sec. 68 and Sec. 164 of the Electricity Act, 2003 over the exercise of power under Sec. 10 of the Indian Telegraph Act, 1885, has reached at the conclusion that the provisions of the Act of 2013 cannot apply for determination of compensation/damages under the Indian Telegraph Act, 1885, in as much as, there is no acquisition of land as contemplated under the Indian Telegraph Act, 1885.

(2.) Mr. Devdip Brahmbhatt, the learned counsel appearing for the appellants, however, relies upon the decision of the learned Single Judge of the Kerala High Court in Writ Petition(C) No.27378 of 2019(V) dtd. 25/2/2020, wherein the learned Judge of the Kerala High Court in one paragraph has stated that there was no reason to accept the contention of the respondents therein as to why the respondents are not liable to grant compensation, rehabilitation and resettlement package in accordance with the Act of 2013, simply because, there is no land acquisition in the said cases. It was further directed that the petitioners therein shall be entitled to compensation as contemplated under the provisions of Sec. 16 of the Indian Telegraph Act, 1885.

(3.) Based on the said observations, it is vehemently argued by the learned counsel for the appellants that the observations of the Kerala High Court for application of the Act of 2013 in the matter of determination of compensation/damages for exercising the right of way over the land under Sec. 10(d) of the Indian Telegraph Act, 1885 have persuasive value. We are afraid to accept the said contention of the learned counsel appearing for the appellants by reading the observations made in paragraphs 10, 14 and 15 of the decision of the Kerala High Court, which read as under:-