Delhi District Court
Sh. Hemraj Bansal vs Tata Power Delhi Distribution Ltd. ... on 14 January, 2022
1
IN THE COURT OF JSCC-ASCJ-GJ,
NORTH DISTRICT ROHINI COURTS, DELHI.
PRESIDING OFFICER: MS. AANCHAL, DJS
CS 449/18
Sh. Hemraj Bansal
S/o Sh. Jagan Nath Bansal
R/o H. No. 1863, Mamurpur,
Narela, Delhi. ....Plaintiff
Vs.
Tata Power Delhi Distribution Ltd. (TPDDL)
Through its chief executive officer having its office at:
Hudson Lane, Kingsway Camp
Delhi-110009.
....Defendant
Date of Institution : 06.04.2018
Date on which judgment is reserved : 06.01.2022
Date of Decision : 14.01.2022
JUDGMENT
1. Vide this judgment, this court shall decide the afore-mentioned suit filed by the plaintiffs for mandatory injunction thereby directing the defendant to straighten the Pole No.514-67/29/2/1 (herein after called as the "pole"), which is tilted/bent inside and the upper portion of which has entered in the property bearing No. H.No.1863, Mamurpur, 7 Narela, 1/13 Hemraj Bansal vs TPDDL 2 Delhi (hereinafter called as the property of the plaintiff for sake of brevity).
2. The facts stated in the plaint are as under:
That on west corner of the property of the plaintiff, an Electric Pole No 514-67/29/2/1 of Tata Power Delhi Distribution Ltd. is installed, which is tilted/bent inward and the upper portion of the same is inside plaintiff's residence. The boundary wall of the property of the plaintiff is very low in height and the plaintiff wants to raise the height of this boundary wall to a reasonable height to avoid untoward incident of theft, robbery and dacoity, which may occur at any time due to low height of the boundary wall. In short, in future the plaintiff is planning further construction to meet out the family requirements but the bent/tilted pole will hinder/ obstruct the construction job. The incidents of theft, robbery and dacoity are increasing day by day in Delhi and N.C.R. and the plaintiff has every apprehension that due to above said pole and the low height of the boundary wall, any mishappening may occur any time. For the safety of his family and property, the plaintiff wants to raise the height of the boundary wall of his house, but unable to do so, because the Pole is tilted/bent upon the boundary wall and upper portion of the pole is inside the plaintiff's property and is obstructing the plaintiff's way to raise the height of 2/13 Hemraj Bansal vs TPDDL 3 boundary wall to a reasonable height to safeguard his family members from any untoward incident. That to straighten the said Pole, the plaintiff has run from pillar to post personally and through letters dated 06.06.2017, 03.07.2017, 21.08.2017 & 12.09.2017, which were duly received by the defendant, but he could not succeed to get the pole straighten and TPDDL Officers did not pay any heed. The present position of Pole is very dangerous for the plaintiff and his family members and they are living in the said property in great stress, fear and tension.
3. Upon service of the summons for settlement of issues, the defendant filed detailed written statement wherein the suit of the plaintiff is preliminary objected on the ground that the plaintiff is required to get permission from MCD as well as NOC from neighbors who are objecting the shifting/straightening of the poll and he is required to pay the estimated cost of the job as per rule 24 of DERC Regulation 2017 but the plaintiff has failed to comply with these instructions. On merits, it is denied that the pole is tilted or bent inwards and the upper portion of the pole is inside the boundary wall of the plaintiff's residence or that the boundary wall of the house of the plaintiff is very low or the plaintiff intends to raise the height of the boundary wall to a reasonable height to avoid untoward incident. It is stated that plaintiff has extended the unauthorized balconies which are touching the already existing network 3/13 Hemraj Bansal vs TPDDL 4 of the defendant which is violating rule 63 of Indian Electricity Rules. It is also stated that apprehension of plaintiff is misconceived and only an imagination without any basis to create false and baseless ground for making cause of action. It is categorically denied that the pole is obstructing in plaintiff's plan to raise the height of the boundary wall to the reasonable height or he was caused to run from pillar to post. It is stated that after receiving the request from the plaintiff, the official of the defendant visited the site and found that gali where the pole was already existing, is very narrow and local residents of gali created severe resistance for straightening the pole which requires to dig a pit in the gali for which necessary permission of MCD/land owing agencies is required.
4 The plaintiff filed the replication to the written statement wherein facts as stated by the defendant are denied in totality and the case as presented by the plaintiff in his plaint is reiterated. 5 Following issues were framed by Ld Predecessor of this Court vide order dated 11.01.2019:
1. Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendant, as prayed? OPP 4/13 Hemraj Bansal vs TPDDL 5
2. Whether the plaintiff is liable to pay for the straightening of the pole? OPP
3. Whether the plaintiff is liable to get the permission/protection from the concerned authorities to get the pole straightened? OPD
4. Whether the plaintiff is required to pay the estimated cost of the job as per Rule 24 of DERC Regulation, 2017? OPD
5. Whether the suit of the plaintiff is without any cause of action? OPD
6. Relief.
6. The plaintiff stood into witness box as PW-1 and he relied upon following documents:
1. Photographs which is Ex. PW1/1.
2. Copy of letter dated 07.10.2014 which is Ex. PW1/2.
3. Copy of letter which is Ex. PW1/3. (Colly) On the other hand, Sh. Parteek Jaiswal is examined as DW-1 by the defendant and he relied upon certain photographs and a letter dated
07.10.2014 which was also relied upon by the plaintiff.
7. Arguments are heard and record is perused carefully. Now, this court is proceeding to give issue wise findings which are as under.
ISSUE NO. 2.
2. Whether the plaintiff is liable to pay for the straightening of the pole? OPP 5/13 Hemraj Bansal vs TPDDL 6 ISSUE NO. 3.
3.Whether the plaintiff is liable to get the permission/protection from the concerned authorities to get the pole straightened?
OPD ISSUE NO. 4.
4. Whether the plaintiff is required to pay the estimated cost of the job as per Rule 24 of DERC Regulation, 2017? OPD 8.1 The onus to prove these issues lies on the defendant. 8.2. In para No.2 of preliminary objection in the written statement, it is pleaded by the defendant that after receipt of the request from the plaintiff, officials of the defendant visited the site for inspection and to assist the technical feasibility but found that the local residents of gali created severe resistance for straightening of the pole which requires to dig a pit in the gali for which necessary permissions of MCD/Land owning agency is required as per technical feasibility and therefore, the plaintiff was required to seek the permissions from MCD as well as NOC from neighbours and he was also required to pay the estimated costs of job as per rule 24 of the DERC Regulation 2017 but the plaintiff has failed to comply these instructions of the officials of the defendant. 8.3. Going through the plaint and case of the plaintiff, this court has been unable to find that the plaintiff ever prayed for shifting of the pole. The only case of the plaintiff had been to straighten the pole. Therefore, the 6/13 Hemraj Bansal vs TPDDL 7 question of digging the pit which may be required for shifting of the pole, does not arise at all.
8.4 Now the question arises if the straightening of the pole requires the digging of the pit and consequently the permission from MCD/Land owing agencies or NOC from neighbours to be sought by the plaintiff. The only witness produced by the defendant Sh. Parteek Jaiswal, who filed the affidavit in the lines of the pleading of the defendant, relied upon only letter dated 07.10.2014 as sent by District Manager Narela of defendant to the plaintiff besides certain photographs. Definitely the photographs are unable to assist about the requirement of digging of the earth, if any, for straightening of the pole. Letter dated 07.10.2014 is the only communication made by the defendant to the plaintiff. But even in this letter, it has not been stated that the team of the defendant had visited the site to assist the feasibility of the straightening the pole but contrary to the pleading and stand of the defendant, it is stated that the team had visited to set right the pole but it could not be straighteedn due to public hindrance. Vide this letter, it is also nowhere stated that the plaintiff is required to seek any kind of NOC or permission from MCD or any land owning agencies or to pay any penny for straightening of the pole. It only suggests that the written statement filed by the defendant consisting of what was not present in any document, is nothing but after thought. Not only this, the cross-examination of Sh. Parteek Jaiswal further brings 7/13 Hemraj Bansal vs TPDDL 8 certain facts on record which are demolishing the case of the defendant in totality. He stated in clear words that no technical feasibility report in respect of the pole has been placed. Further, admitting that the pole is installed in the public street, he stated that whenever an electric pole is to be installed, the permission of the concerned department is sought by the defendant and expenses are also incurred by defendant/department only and whenever some repair work is required for installation of pole i.e. straightening or replacing, the same is done by the defendant at its own expenses and defendant takes all the necessary permission to do the same from the concerned department. He seems to have taken prejudicial stand in favour of the defendant when he stated that the pole is bent within permissible limit as he continued that no particular angle for tilting is described in rule book and manual. He unequivocally stated that defendant is required to take permission from the concerned department for straightening the pole and department has to incur expenses to straighten the pole and in fact defendant has a right to take police assistance if any person resist in repairing and straightening the pole negating the case of defendant in totality.
8.5 At this point, it is necessary to look at the rule 24 of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Rules, 2017 specifically quoted and stressed by the defendant to cast the obligation upon the defendant to bear the expenses and to seek the 8/13 Hemraj Bansal vs TPDDL 9 permissions from MCD etc. This particular rule is reproduced as under
for ready referrence:-
"24. Procedure for shifting electric line or electrical plant of the Licensee.-
(1) The owner of the land or his successor in interest, who has given right of way for the construction of an existing electric line or electrical plant over, under, along, across, in or upon the said land, may apply for shifting the electric line or electrical plant to any other portion of his land for genuine purposes:
(2) The application for shifting the electric line or electrical plant shall be submitted to the Licensee.
(3) On receipt of the application, the Licensee shall inspect the site and assess the technical feasibility of the proposed shifting.
(4) The request for shifting an electric line or electrical plant shall be granted only if:-
(i) the proposed shifting is technically feasible. and
(ii) the owner of the land or his successor in interest gives consent in writing to shift the electric line or electrical plant to any other portion of his land or to any other land owned by him or any alternate right of way to be arranged by him for shifting the electric line and the electrical plant and
(iii) the owner of the land or his successor in interest shall take necessary permission/approval for road cutting or right of way, if required.
(iv) the applicant remits the applicable charges required for shifting the electric line or electrical plant.
9/13 Hemraj Bansal vs TPDDL 10 (5) The Licensee shall shift the electric line or electrical plant, if the conditions specified in sub-regulation (4) are complied with by the applicant.
(6) In case of shifting of meter or service line within the premises of the consumer, the procedure specified in the Regulation 25 shall apply."
8.6 Bare perusal of this rule shows that it is not applicable in the case of plaintiff for the following reasons:
1. The plaintiff's case is nowhere for shifting the electric pole where above Rule applies but his simple case is for straightening the pole.
2. This rule is applicable when electrical line/ plant is situated within the land owned by the applicant. Admittedly, the pole is not situated within the property of the plaintiff and he is not asking for shifting this pole within his property. He is only praying for straightening the pole which is situated outside the limit of his property on a public street.
3. Electricity pole is the part of the distribution system and as per Rule 4 sub-clause 3 of the DERC, maintenance of the distribution system is the responsibility of licensee i.e the defendant in the present case.
Hence, in the view of the above discussions, it is held that defendant has miserably failed to prove that plaintiff is liable to get permission/protection from the concern authorities to get the pole 10/13 Hemraj Bansal vs TPDDL 11 straighten or he is required to pay the estimated cost of the job or to pay anything. Consequently, the three issues under consideration are hereby decided against the defendant and in favour of the plaintiff. 9 ISSUE NO.5 Whether the suit of the plaintiff is without any cause of action? OPD 9.1. The Onus to prove this issue also lies upon the defendant. 9.2 The defendant has pleaded that the suit of the plaintiff is without cause of action submitting that the plaintiff has failed to comply the directions of the officials of the defendant about payment of estimated costs of the job and to seek permission/NOC from MCD/Land owning agencies and neighbours. While deciding the issues No. 2, 3 & 4, this court has held that defendant has failed to prove that plaintiff is liable to pay for straightening the pole or for estimated costs of the job as per rule 24 of DERC Regulation or he is liable to get the permission/protection from concerned authorities to get the pole straightened. In view this, the suit of the plaintiff cannot be said as without cause of action and the issue in hand is decided against the defendant and in favour of the plaintiff. 10 ISSUE NO.1
Whether the plaintiff is entitled that decree of mandatory injunction against the defendant ? OPP 10.1. The Onus to prove this issue lies upon the plaintiff. This is not disputed by the defendant that the pole is situated outside the boundary of the 11/13 Hemraj Bansal vs TPDDL 12 property of the plaintiff. It is also not disputed by the defendant the pole is bent. With the disposal of the issues No.2, 3, 4 & 5, it is also proved that the suit of the plaintiff is not without any cause of action and he is neither liable to pay for any costs to be incurred for straightening the pole nor he is required to seek any permission from any agencies or neighbours. While deciding these issues, this court also discussed that it is responsibility of licensee that is the defendant in the present case as per DERC Rules, to maintain the distribution system of which pole is a part. The only witness produced by the defendant has also admitted that in order to maintain the same including for straightening the pole, all the expenses are to be incurred by the defendant and it is only the defendant who has to seek the necessary permission, if required and in fact the defendant can also seek the assistance from the police authority. Defendant has also failed to produce anything on record that any further compliance was required to made by the plaintiff except an information requiring action on the part of the defendant to straighten the pole. 10.2 In order to contest the suit, it has also been stated on behalf of the defendant that the pole was installed even before the property by the plaintiff was constructed and that the construction in the property of the plaintiff is unlawful and against the sanction plan. This court is of the view that these all contentions are irrelevant since the pole is required to stand straight rather than in slanting position entering into the 12/13 Hemraj Bansal vs TPDDL 13 property of others. Want of sanction plan or illegality in the construction are also the facts to be looked into by the concerned authority and the defendant has nothing to do in this regard. It also does not assign any reason to defendant to allow the pole to intrude into the properties of other. Therefore, finding that there exists an obligation cast by law upon the defendant to maintain the distribution system, the plaintiff is held entitled for mandatory injunction in his favour against the defendant and the issue in hand is decided in favour of the plaintiff.
RELIEF In view of the decisions of the above issues involved in the case, the suit of the plaintiff is allowed and a mandatory injunction is passed in favour of the plaintiff and against the defendant there by directing the defendant to straighten the pole No. 514-67/29/2/1 within 15 days as per law.
Decree sheet be prepared. Thereafter, file be consign to record room.
Announced in the open Court on 14th January, 2022 at 4.00 P.M. (Aanchal) JSCC/ASCJ/Gudn. Judge North, Rohini Courts, Delhi/14.01.2022/ab/r 13/13 Hemraj Bansal vs TPDDL