Aerial Right Of Way Over Transmission Lines Vests With State; Landowners Can’t Claim Compensation: J&K And Ladakh High Court
The Court reiterated that while compensation may be payable for land actually acquired for the erection of transmission towers and for damage caused to trees or crops, individual landowners cannot claim compensation merely because overhead transmission lines pass through their land.
Justice Sindhu Sharma, Justice Shahzad Azeem, Jammu & Kashmir & Ladakh High Court
The Jammu & Kashmir and Ladakh High Court has dismissed an appeal seeking compensation for the entire land allegedly rendered unusable by overhead 220 KV transmission lines, holding that the aerial right of way in respect of transmission lines continues to vest with the State and cannot be asserted by individual landowners.
The Court held that compensation already paid for the portion of land actually acquired for the construction of the transmission tower settled the issue, and no additional compensation could be claimed merely because transmission lines passed over the remaining land.
The Court was hearing a Letters Patent Appeal challenging the judgment whereby the writ petition seeking compensation for land allegedly affected by the 220 KV D/C Zainakote-Amargarh transmission line had been dismissed.
A Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem observed: “The only issue which arises for consideration is whether an aerial right of way can be asserted by an individual. It is well settled that aerial right of way for transmission lines continues to vest with the State, and the individual land owners cannot assert any right for the same.”
M.S. Reshi, Advocate, appeared for the appellant. Faheem Shah, Government Advocate, appeared for the respondents.
Background
The case arose out of the process initiated by the respondents for laying the 220 KV D/C Zainakote-Amargarh transmission line. For the execution of the project, land belonging to several landowners, including the appellant, was required for the construction of transmission tower structures.
According to the record, land belonging to the appellant was utilised for the construction of a transmission tower. The appellant had requested the shifting of the tower foundation, but the request was not accepted on the grounds of technical infeasibility since the transmission route had already been approved by the Central Electricity Authority, Government of India, as part of the sanctioned scheme and project report.
The respondents stated that compensation for the acquired 05 marlas had already been paid to the appellant in 2008 on negotiated rates fixed during private negotiations conducted under the chairmanship of the Deputy Commissioner, Budgam.
Subsequently, the appellant approached the High Court in seeking compensation not only for the tower site but also for the land over which overhead transmission lines had been laid. The writ petition was disposed of, directing consideration of the appellant’s claim in accordance with the rules.
Pursuant thereto, the respondents passed a consideration order rejecting the appellant’s claim for additional compensation by holding that the claim was “not tenable under rules”.
The appellant thereafter sought quashing of the consideration order and claimed compensation for the entire land allegedly rendered unusable by the overhead transmission lines, besides compensation for fruit-bearing and non-fruit-bearing trees.
The writ petition was dismissed by the Single Judge.
Court’s Observation
The High Court noted that the principal contention of the appellant was that although compensation had been paid only for 05 marlas occupied by the transmission tower, the entire land had become unusable and uncultivable because the 220 KV transmission line passed through the middle of the property.
The appellant argued that the respondents were duty-bound to compensate him for the entire transmission corridor, as the high voltage transmission line had adversely affected crops, fruit-bearing trees and the utility and value of the remaining land.
Reliance was placed upon the Supreme Court judgment in Kerala State Electricity Board vs. Livisha and others (2007).
The respondents, however, contended that there existed no statutory provision permitting payment of compensation for land merely falling underneath overhead transmission lines. They further stated that compensation for trees cut for creating the transmission corridor had already been assessed by the competent authority and remained available before the Collector Land Acquisition, PDT/MHPS, Bemina.
The Division Bench held that the controversy stood squarely covered by the earlier Division Bench decision in Ranvijay Chand and others vs. State of J&K and others (2005), in which it was held: “a land holder cannot assert any right, legal, fundamental or constitutional right qua transmission line; the aerial right of way in respect of transmission lines continues to be with the State and individual owners cannot claim compensation in respect of transmission lines continues to be with the state and individual owners cannot claim compensation in respect thereof”.
The Court noted that the transmission lines had been laid strictly in accordance with the original alignment approved in the sanctioned project report after technical feasibility clearance by the Techno-Economic Committee.
The Bench further observed that since compensation for the land actually utilised for the construction of the transmission tower had already been paid through a negotiated settlement, the issue relating to compensation for the acquired land already stood concluded.
With regard to compensation for trees removed while providing the transmission corridor, the Court recorded that the assessment had already been carried out and the appellant was at liberty to approach the Collector’s office for release of the amount.
The Court ultimately held that the appellant could not claim compensation for the entire land merely because the overhead transmission lines passed through it, as no legal right existed in respect of the aerial right of way.
Conclusion
The Jammu & Kashmir and Ladakh High Court dismissed the Letters Patent Appeal after holding that the aerial right of way in respect of transmission lines continues to vest with the State, and individual landowners cannot claim compensation merely because transmission lines pass over their property.
The Court further held that compensation for the land actually acquired for the erection of the transmission tower had already been paid, and no illegality or infirmity existed in the judgment of the learned Single Judge warranting interference.
Cause Title: Ghulam Mohi Uddin Sheikh v. UT of J&K and Others