Andhra Pradesh High Court - Amravati
Medisetti Murali Srinivas vs State Of Andhra Pradesh on 30 April, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
NJS, J
WP_3711 & 30796_2022
APHC010058372022
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
TUESDAY ,THE THIRTIETH DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.3711
No. of 2022 & 30796 of 2022
W.P.No.3711 of 2022
Between:-
Medisetti Murali Srinivas & Others ..... Petitioners
And
State of Andhra Pradesh,
Through by its Prl.Secretary,
Energy Department & Others. ..... Respondents
Counsel for the Petitioners : Mr.V.S.R.
V.S.R. Anjaneyulu, Senior Counsel
for Ms.Vangala Sailaja in W.P.No.3711 of 2022
Mr.C.Srinivasa Baba, counsel for the petitioner
in W.P.No.30796 of 2022
Counsel for the Respondents : G.P. for Energy
G.P. for Home
Mr. V.R.Reddy Kovvuri
Mr.P.Srinivasa Rao
****
COMMON ORDER:
Writ Petition etition No.3711 of 2022 has been filed challenging the Proceedings of the respondent No.3 dated 02.02.2022 as illegal, violative of Articles 14, 21 and 300-A A of the Constitution of India and to direct the dents 2 to 4 not to lay 11 KV High Voltage Electric Service Lines across respondents 2 NJS, J WP_3711 & 30796_2022 the pathway in the midst of two residential building complexes situated in Survey No.4142/2, Block No.15 of Poranki Village.
2. Prior to filing of the above said writ petition, the petitioners filed W.P.No.14625 of 2021 aggrieved by the action of the respondents 2 to 4 therein, in trying to lay 11 KV High Voltage Electric Service Lines and the same was disposed of by a learned Judge vide Order dated 27.07.2021 leaving it open to the petitioners to submit appropriate representation to the respondents 2 to 4 for redressal of their grievance and the same was directed to be considered after hearing all the stake holders. It was also directed that till a decision is taken, Status Quo as on that day with regard to laying of High Voltage Electric Service Lines shall be maintained. Subsequently, the 3rd respondent vide Proceedings dated 22.12.2021 rejected the representation / objections of the petitioners with regard to laying of High Voltage Electric Service Lines across the path way in Survey No.414/2, Block No.15 of Poranki Village. Challenging the said proceedings, the petitioners filed W.P.No.30911 of 2021 and the same was disposed of by an Order dated 31.12.2021 with a direction to the 3rd respondent to consider the issues raised by the petitioners afresh, in accordance with the Law. The relevant portion of the Order reads as follows:
" Till such exercise is completed, status quo as on today with regard to laying of electric service lines in the subject land shall be maintained. It is also made clear that the petitioners as well as the 5th respondent shall appear before the 3rd respondent on the date which is to be fixed by the 3rd respondent. It is also further made clear that if the petitioners or the 5th respondent are not present on the said date, it is open for the 3rd respondent to proceed as per law in their 3 NJS, J WP_3711 & 30796_2022 absence. It is also made clear that the petitioners herein as well as the 5 th respondent shall exchange their objections / representations."
3. Thereafter, the 3rd respondent issued Proceedings dated 02.02.2022 which are impugned in W.P.No.3711 of 2022.
4. W.P.No.30796 of 2022 has been filed by the flat owners, who purchased flats from the 6th respondent in W.P.No.3711 of 2022. They filed the instant writ petition seeking to declare the action of the respondents / officials of the Central Power Distribution Company Limited in not providing domestic power connection to their residences / flats in Sri Ramachandra Residency, Poranki inspite of receiving necessary fees as illegal, arbitrary, violative of Articles 19 and 21 of the Constitution of India and for consequential directions to provide domestic power connection.
5. Heard Mr.V.S.R.Anjaneyulu, learned Senior Counsel appearing on behalf of the petitioners in W.P.No.3711 of 2022 and respondents 5 to 7 in W.P.No.30796 of 2022. Also heard Mr.C.Srinivasa Baba, learned counsel for the petitioners appearing in W.P.No.30796 of 2022 and Mr.V.R.Reddy Kovvuri, learned Standing Counsel appearing on behalf of respondent- authorities and learned counsel appearing on behalf of the Builder-6th respondent in W.P.No.3711 of 2022, who appeared through on line.
6. Mr.V.S.R.Anajaneyulu, learned Senior Counsel made elaborate submissions with reference to the chronological events of the case. He submits that the petitioners are the owners of exclusive joint private path way in Survey No.414/2, Block No.15 of Poranki Village and they have filed 4 NJS, J WP_3711 & 30796_2022 O.S.No.691 of 2018 on the file of the Court of the V Additional Junior Civil Judge, Vijayawada and vide Orders dated 05.12.2018, the learned Trial Judge in I.A.No.256 of 2018 granted temporary injunction restraining the defendants from using the said path way. He submits that suppressing the pendency of the Civil Suit, one of the defendants filed W.P.No.80 of 2019 and obtained Orders dated 04.01.2019 behind back of the petitioners and got laid a road in the subject matter path way projecting as if it is a Gram Panchayat Road. He submits that the petitioners against the orders of the learned Single Judge in W.P.No.80 of 2019, filed W.A.No.225 of 2021 and the same was allowed by a Division Bench of this Court by an Order dated 18.07.2023, setting aside the Order dated 04.01.2019 and the writ petition was restored to file.
7. While stating that the said writ petition is pending, the learned counsel further submits that the petitioners aggrieved by the action of the Gram Panchayat in interfering with the petitioner's rights over the path way filed W.P.No.10199 of 2020 and the same was dismissed. Against the said orders, the petitioner's filed W.A.No.162 of 2021 and the same is pending. He also submits that as the injunction orders granted in I.A.No.256 of 2018 were reversed by the lower Appellate Court vide Orders dated 20.08.2019 in C.M.A.No.2 of 2019, the plaintiffs filed C.R.P.No.3218 of 2019 and the same is pending. Referring to the orders in the writ petitions filed by the petitioners on the earlier occasion pursuant to which the Order / Proceedings of the 3rd respondent dated 02.02.2022 came to be passed, he submits that the same is unjust, arbitrary, violative of principles of natural justice and contrary to the 5 NJS, J WP_3711 & 30796_2022 directions of the Learned Judge in W.P.No.30911 of 2021. He submits that while disposing of the said writ petition, the Learned Judge had categorically directed the parties to exchange their objections / representations and in compliance with the same, the petitioners had sent their objections through speed post to respondent No.6 (hereinafter referred to as the Builder) and the same was returned with an endorsement 'Refused'. Further, the Builder filed objections without sending a copy to the petitioners and the 3rd respondent had taken the said objections into consideration. He also submits that though the petitioners have submitted the relevant documents along with the Objections dated 06.01.2022 (Ex.P3) and an acknowledgment in receipt of the same was issued, surprisingly, the 3rd respondent had not taken the same into consideration and made an observation that no document was produced, except making oral submissions. He also submits that the 3 rd respondent had also relied on some material, the copies which are not furnished to the petitioners and the Proceedings dated 02.02.2022 are liable to set aside. The learned Senior Counsel also placed reliance on the decision of the erstwhile High Court of Andhra Pradesh at Hyderabad in Gade Jogi Reddy v. Commissioner, Survey Settlement and Land Records1.
8. The learned Senior Counsel further contends that the petitioners in W.P.No.3711 of 2022 alone have the right to the subject path way and despite the pendency of civil litigation and despite the Orders of Status Quo in W.P.No.14625 of 2021, the respondent-authorities in a high handed and 1 2006 (5) ALT 212 6 NJS, J WP_3711 & 30796_2022 illegal manner sought to give High Tension Service connection to the five storied apartment constructed by the Builder. He submits that the proposed High Tension Lines would run between two residential Apartment complexes and there would be a serious threat to the lives of the residents of the said Apartment complexes. He submits that the Builder while obtaining the sanctioned plan had shown a 60 Feet road as Approach Road to the said Apartment constructed by him (Sri Ramachandra Residency) and the permission for construction of the same would not have been granted had he not shown the 60 Feet road as Approach Road. He further submits that without considering the relevant aspects in a proper perspective, the 3rd respondent through the impugned proceedings held that C.C.Road is Panchayat Road and it is not private property. He also submits that when there is a serious dispute with regard to the subject path way, the respondent- authorities have to lay the electricity lines through an alternative way. In this regard, he relies on the decision of the Hon'ble Supreme Court in Chandu Khamaru v. Nayan Malik2.
9. On the other hand, Mr.C.Srinivasa Baba, learned counsel appearing on behalf of the flat owners / petitioners in W.P.No.30796 of 2022 submits that they are bonafide purchasers of the residential flats and have been subjected to great hardship and serious prejudice as the regular Service Connection to the residential complex / apartment "Sri Ramachandra Residency", has not been released so far by the respondent-authorities, though the Builder had 2 (2011) 12 SCC 314 7 NJS, J WP_3711 & 30796_2022 paid the requisite charges long back. He submits that pursuant to the orders of the Learned Judge in W.P.No.30911 of 2021, the 3rd respondent had examined the matter and passed the Orders dated 02.02.2022 by taking into consideration the technical aspects apart from the safety aspects of residents in the residential complexes situated in the subject matter path way, for laying 11 KV lines with "Aerial Bunch Cable" and therefore, the contentions advanced by the learned Senior Counsel deserves no acceptance. He further submits that the contention that the subject matter path way is exclusively private property / road, is not tenable. He submits that W.P.No.10199 of 2020 referred to by the learned Senior Counsel was dismissed by a learned Judge by assigning cogent reasons and with a categorical observation that the authorities cannot be prevented from laying the road or providing drainage facility in the site situated in Survey No.414/2, Block No.15.
10. Drawing the attention of this Court to the decision of a learned Single Judge of High Court of Kerala in W.P.(C) No.6384 of 2015 dated 10.04.2015, wherein it was opined "that once a property assumes the character, say, a road or a path, having the potential of being a public utility, it ceases to have any exclusivity, for the individual interest is to yield to the common good", he submits that the existing path way is a 12 Feet road, wherein the electric lines laid by respondent-Corporation are already existing / connecting to the residential complexes and in such circumstances providing service connection to the Flats / Apartment by following the safety measures would not cause prejudice to anyone, much less to the writ petitioners. 8
NJS, J WP_3711 & 30796_2022
11. The learned counsel also submits that the flat owners at present, are availing the electric supply under commercial category that too through temporary lines, which is more dangerous and posing serious threats to the flat owners / their properties due to power fluctuations, leading to burning of electrical wires and valuable electrical and electronic items. The learned counsel seeks appropriate directions, stating that due to non supply / release of regular Service Connection to the petitioners' Flats (Apartment), their valuable rights guaranteed under Articles 19 and 21 of the Constitution of India are seriously affected.
12. The learned Standing Counsel appearing on behalf of the respondent- authorities, on the other hand, made submissions to sustain the impugned Proceedings dated 02.02.2022. Referring to the affidavit dated 21.02.2023 filed with reference to the Orders dated 11.10.2022, submits that the possibility of an alternative route for providing electricity service connection to the residential apartment of the petitioners in W.P.No.30796 of 2022, was explored. He submits that it is not feasible to lay lines through the 60 Feet road referred to by the learned Senior Counsel, due to various reasons set out in the said affidavit. He submits that the petitioners in W.P.No.3711 of 2022, cannot have any apprehensions as the respondent-authorities as stated in the affidavit are proposing to use "Aerial Bunch Over Head Cable" which ensures the safety and interest of the public. He also submits that in the alternative route, there are 21 houses and though the road is 60 Feet width, due to encroachments only 12 Feet of the existing road is available and all the 9 NJS, J WP_3711 & 30796_2022 existing lines have to be replaced and that it would not be feasible to lay the lines through the said alternative route. He also submits that the 4th respondent has no personal interest in the matter and that no new lines are being laid as sought to be contended, but the existing lines in the subject matter road / path way have to be improved. Stating that the respondent- authorities are using the technology, which is best in class to protect the interest of the consumers and the public at large and that the apprehensions of life threats etc., would be taken care of, he further submits that laying of underground cables would not be a better alternative as the cabling is extremely difficult and in the event of repairs / break downs, the officials of the Department would not be in a position to take immediate action to restore the power supply / resolve the problem. He submits that there is sufficient space for providing HT Service Connection to the residents of the Apartment / flat owners of the residential complex constructed by the Builder and safety in all respects can as well be ensured by using "Aerial Bunch Over Head Cables."
13. In reply to the said arguments, the learned Senior Counsel made submissions with reference to the Technical Manual of Andhra Pradesh Central Power Distribution Corporation Limited and has drawn the attention of this Court to the relevant guidelines / standards for erection of 33 KV, 11 KV & LT Lines. Insofar as the affidavit of the 4th respondent referred to above is concerned, while making serious allegations against the deponent of the said affidavit, the learned Senior Counsel submits that the 4th respondent / Assistant Engineer conducted the so called inspection of the 60 Feet road on 10 NJS, J WP_3711 & 30796_2022 13.10.2022, without any notice to the petitioners, he contends that if the said Officer is acting bonafidely to explore any alternative route in all fairness, a notice should have been issued to the petitioners / the concerned parties and thereafter a survey / spot inspection should have been conducted, and the justification sought to be projected that alternative route for laying the electric lines is not suitable merits no acceptance. He contends that the 4 th respondent only with a vindictive attitude submitted that the alternative route is not feasible as the petitioners have lodged complaints to the concerned police with regard to the illegal and high handed actions of the 4 th respondent. Drawing the attention of this Court to the counter-affidavit of the Builder, the learned Senior Counsel submits that when the Builder himself is ready to bear the expenses for laying of lines through the 60 Feet road, which in fact shown in the sanctioned plan as an Approach Road, the action of the respondents authorities in proceeding to lay a road through the private property of the writ petitioners under the influence of the 4th respondent is wholly impermissible. He submits that the human lives are precious and the assertions on behalf of the respondent-authorities that interest of the petitioners and other public is safeguarded / would be protected by using latest technology for laying lines, cannot be appreciated and no one can give guarantee to the safety of lives, in the present day scenario. Making the said submissions, the learned Senior Counsel seeks to allow the writ petition as prayed for.
14. This Court has considered the submissions made and perused the material on record.
11
NJS, J WP_3711 & 30796_2022
15. At the outset, it may be appropriate to mention that as many as 12 cases have been filed directly or indirectly with reference to the path way referred to above and providing Service Connection to the inmates of the Flats / Apartment constructed by the Builder. Out of the said cases including the present writ petitions, six cases are pending. This speaks volumes of chronic litigation between the parties. While this Court is not inclined to delve much in detail with regard to the so called rights of the petitioners in respect of the path way, which is claimed to be a private property, feels it appropriate to put a quietus to this litigation, keeping in view of the interest of both sides.
16. Insofar as the impugned Proceedings dated 02.02.2022 of the 4 th respondent are concerned, as argued by the learned Senior Counsel, W.P.No.30911 of 2021 was disposed of with specific directions vide Order dated 31.12.2021, which is clear and unambiguous. In the light of the orders in the said writ petition, the parties are bound to exchange their objections and thereafter the 3rd respondent / Executive Engineer was under a legal obligation to pass orders by taking into consideration the objections. However, it appears that the Builder who filed objections before the 3rd respondent had not furnished a copy of the same to the writ petitioners and on the other hand, refused to receive the objections sent by the petitioners and there is no dispute about the same. Be that as it may.
17. A perusal of the material placed before this Court would go to show that the petitioners along with their objections dated 06.01.2022 submitted some material, the receipt of which was acknowledged by the Office of the 3rd 12 NJS, J WP_3711 & 30796_2022 respondent on 07.01.2022. That being the position, the observation of the 3rd respondent in the impugned proceedings dated 02.02.2022 that no material is filed by the writ petitioners is contrary to the record. Further, from a reading of the impugned order, it is also discernible that the 3 rd respondent had relied on some material / documents, without furnishing the copies of the same to the writ petitioners and conclusions were arrived at by him while issuing in the Order / Proceedings dated 02.02.2022. Though the learned counsel appearing on behalf of the respondent-authorities as also the learned counsel appearing for the petitioners in W.P.No.30796 of 2022, sought to impress upon this Court that the 3rd respondent had taken the relevant aspects into consideration by giving adequate opportunity to the petitioners, this Court is not inclined to accept the same. No adherence to the directions of the Learned Single Judge in W.P.No.30911 of 2021 and not furnishing of the material relied on by the 3rd respondent, forming basis for passing the Orders dated 02.02.2022 is fatal and the said proceedings are not sustainable in Law. Accordingly, the same are set aside on the said grounds.
18. Coming to the various other contentions addressed by the learned counsel of the respective parties, it may be appropriate to mention that laying of lines / providing electricity Service Connection is indubitably one of the essential functions of the respondent-Corporation and its officials. While discharging the said functions, various technical aspects / parameters have to be taken into consideration and the best method which sub serves the interest 13 NJS, J WP_3711 & 30796_2022 of the consumers and public at large has to be given paramount consideration.
19. The ongoing litigation between the writ petitioners in W.P.No.3711 of 2022 who claims that laying of lines and providing High Tension Electricity Service Connection to the Apartment constructed by the Builder through the path way, which is stated to be their exclusive private property, that too with the possible threat to the lives of inmates of two residential complexes is illegal, arbitrary and infringes their rights guaranteed under Articles 14 and 21 etc., of the Constitution of India. On one hand and the owners of the flats i.e., the writ petitioners in W.P.No.30796 of 2022 who are seeking the regular electricity connection and agitating that their rights guaranteed under the said Articles by the Constitution of India are infringed on the other hand is not likely to end up that smoothly or at the earliest.
20. Keeping in view the competing interest of both sides on an earlier occasion, this Court had directed the authorities to explore the possibility of an alternative route. In fact, the Builder at the time of applying for building construction shown the 60 Feet road as an Approach road and there is no dispute with regard to the same. However, the 4th respondent in its affidavit dated 21.02.2023 states that he inspected the alternate route to the 60 Feet road on 13.10.2022 and the same is not technically feasible for the reasons set out therein. In this regard, the learned Senior Counsel, as noted earlier, seriously contended that the 4th respondent had not issued any notice to the writ petitioners and the assertions that the alternative route is not technically 14 NJS, J WP_3711 & 30796_2022 feasible are made with malafide intention. While this Court cannot go into the aspects of malafides against a party, who is not impleaded in the writ petition by name / as eo-nominee party, however, is of the opinion that in the light of the ongoing litigation between the parties, the 4th respondent should have issued appropriate notices at the time of exploring the possibility of an alternative route for providing electricity connection to the Apartment constructed by the Builder. In this regard, it may also be pertinent to note and also asserted at the time of hearing, the Builder as stated in the counter- affidavit dated 19.04.2022 "is only asking the official respondents to lay the electrical lines from any convenient road and feasible as per the technical norms for maintenance of the electrical lines and have not been asking to lay the electric line in the disputed path way / road or any particular path way / road and need electrical connection......"
21. In such circumstances, in the considered opinion of this Court before arriving at any conclusion, regarding the feasibility of laying electric lines through the 60 Feet road beyond a shadow of doubt, the authorities should have issued a notice of inspection to all the concerned. Though in the affidavit dated 21.02.2023, the 4th respondent had set out certain technical aspects with reference to the inspection stated to have been conducted on 13.10.2022, no material is placed before this Court to the effect that report if any regarding non-feasibility of laying the line through the alternative route of 60 Feet road is approved by his higher officials. As rightly pointed out by the learned Senior Counsel, no counter-affidavit of the 4th respondent-superior 15 NJS, J WP_3711 & 30796_2022 officers asserting the technical aspects etc., has been filed. Under the said circumstances, this Court instead of giving credence to the affidavit of the 4 th respondent on the basis of the so called inspection dated 13.10.2022, deems it appropriate to direct fresh inspection / survey after giving due intimation to the petitioners in W.P.No.3711 of 2022 and the 6 th respondent- Builder. Such a direction would also be in consonance with the judgment of Hon'ble Supreme Court in Chandu Khamaru's case referred to supra, wherein the Hon'ble Supreme Court directed the distribution licensee to find out whether there is any other way, through which an electrical line can be drawn for supply of electricity to the house of the appellant therein other than the disputed passage and the relevant para reads as follows:
"13. We, therefore, set aside the order of the learned Single Judge as well as the impugned order of the Division Bench and dispose of the writ petition of Respondents 1 to 3 with the direction that the distribution licensee will find out whether there is any other way in which an electric line can be drawn for supply of electricity to the house of the appellant, other than the disputed passage in Dag Nos.406, 407 and 409. If there is no other way to supply electricity to the house of the appellant, the distribution licensee will follow the provisions of sub- section (2) [sic sub-section (1)] of Section 67 of the Electricity Act, 2003 for carrying out the work for supply of electricity to the house of the appellant. This exercise will be completed within a period of six months from today and till the supply of electricity to the house of the appellant is effected through some other way, supply of electricity to the house of the appellant will not be disconnected."
22. On a thoughtful consideration of the matter and in view of the findings recorded in respect of the impugned proceedings dated 02.02.2022, the same are set aside. Further, instead of remanding the matter to the 3 rd respondent, this Court in the light of the above referred decision of the Hon'ble Supreme 16 NJS, J WP_3711 & 30796_2022 Court, is inclined to issue a direction to the Superintendent Engineer (Operation Circle) / 1st respondent in W.P.No.30796 of 2022 to personally survey the 60 Feet road / route, after issuance of notice to the writ petitioners in W.P.No.3711 of 2022 and the Builder / 6th respondent and examine the technical feasibility for issuing appropriate orders to give HT service connection through the said route to the Apartment / Sri Ramachandra Residency irrespective of the cost component, as the Builder is ready to bear the same. Only in the event, it is technically not feasible, then appropriate proceedings suggesting the best route by assigning reasons may be issued.
23. The Superintendent Engineer shall complete this exercise, within a period of three (3) weeks from the date of receipt of copy of this Order and parties on both sides shall cooperate with him. Further, the Superintendent Engineer shall take the assistance of the Department Officials, not less than the rank of the Assistant Divisional Engineer.
24. The writ petitions are accordingly disposed of with the above directions. There shall be no order as to costs. As a sequel, all pending applications shall stand closed.
___________________________ JUSTICE NINALA JAYASURYA Date: 30.04.2024 BLV 17 NJS, J WP_3711 & 30796_2022 THE HON'BLE SRI JUSTICE NINALA JAYASURYA WRIT PETITION No.3711 of 2022 & 30796 of 2022 Date: 30.04.2024 BLV