CALENDULA REALTORS PRIVATE LIMITED Vs. CESC LIMITED

JUDGEMENT

(1.) WHETHER or not the licensee i. e. CESC Limited (hereafter CESC), on being resisted by the petitioner, is required to obtain permission of the District magistrate, South 24 Parganas to proceed further for installation of 220 KV double Circuit Overhead Transmission Line (hereafter the proposed transmission line) is the question that requires determination on this petition. The genesis of the dispute may be noticed. It appears from the counter-affidavit filed by CESC, to the extent the petitioner admits the same as matters of record, that:

(2.) IT is not in dispute that in March, 2009, both the petitioner as well as cesc had initiated proceedings under Section 144 of the Criminal Procedure code (hereafter the Code) before the selfsame Executive Magistrate against each other seeking prohibitory orders, who has passed apparently conflicting orders. However, the cause of action for moving the writ petition appears to be that the request of the petitioner for re-locating the tower proposed to be erected on plot no. 2278 to another side thereof was not accepted by CESC and it had assembled men and machinery to lay the foundation of the proposed tower. Accordingly, the petitioner has prayed for cancellation and/or withdrawal of any decision to install transmission tower on plot no. 2278 and to draw overhead transmission lines over plot nos. 2278, 2321, 2322, 2323, 2275, 2279, 2280 and 2282.

(3.) THE writ petition was heard finally in April, 2009 without exchange of affidavits and judgment was reserved. However, the order reserving judgment was re-called since I desired that the parties ought to consider several decisions of the Madras High Court, which I had the occasion to peruse courtesy Honble sridevan and Honble Reghupati, JJ. of the said Court. The writ petition was consequently placed on board afresh. Upon consideration of those decisions, Mr. Jayanta Kumar Mitra, learned senior counsel representing CESC sought opportunity to file counter affidavit. The prayer was granted and the writ petition was heard extensively on exchange of affidavits, since a question of law of substantial importance is involved. On this occasion, Mr. Mitra was called upon to address Court first.