Patna High Court
Premier Synthetics vs State Of Bihar And Ors. on 16 October, 1996
Equivalent citations: AIR1997PAT165, AIR 1997 PATNA 165, (1996) 2 PAT LJR 905 (1997) 1 BLJ 864, (1997) 1 BLJ 864
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. In this writ application, the 'petitioner seeks indulgence of this Court for issuance of appropriate writ, order or direction commanding the respondent Bihar State Electricity Board and its Officers to remove illegal over head 33000 Volts electric line from the petitioner's urban land bearing Plot No. 690, Khata No. 293, Tauzi No. 5855, Thana No. 17, Ward No. 2 situated at Nasriganj under Danapur Municipality which was purchased by the petitioner for residential purpose. A further prayer has been made for a direction to the respondents to pay the cost of litigation amounting to Rs. 25,000/-.
2. The facts of the case lie in a very narrow compass;
The petitioner purchased the aforementioned land thereinafter to be referred to as 'the land in question') by six registered sale deeds in the year 1983 for construction of house and accordingly, the petitioner is paying rent to the State of Bihar. It is stated that due to some unavoidable reason, the proposed building has not been built, however, the petitioner is trying to gel the house constructed over the land in the shapeof multi-storied building. The petitioner's further case was that in the first week of November, 1995, the petitioner got an information regarding unauthorised dumping of electric poles for installation and just after the said information, the Manager, Administration of the petitioner inspected the land in question and wrote a letter to the respondent No. 6 Assistant Electrical Engineer, Patna Electric Supply Undertaking, Patna on 13th November, 1995 stating inter alia for removal of electric poles immediately which were dumped on the plot in question. A copy of the said letter is An nexure-2 to the writ application. It was further stated that by letter dated 16th November, 1995, the petitioner wrote a letter to the respondent No. 5, Electrical Executive Engineer, Electric Supply Division and requested him to remove the unauthorised dumping of electric poles lying on the petitioner's land, otherwise the petitioner will take legal action in the matter. Apart from the aforesaid letter, the petitioner alleged that the staff of the petitioner was always in touch with respondent No. 5 so that the matter can be sorted out easily. Howeverin the first week of February, 1996, one M/s. Bindyabashini Private Ltd. in collusion with respondent Nos. 4,5 and 6 fixed the electric poles at both end of the petitioner's land so that the electric connection may be passed over from the petitioner's land. As such, on 9th February, 1996 again the Manager Administration of the petitioner wrote letter to the respondent No. 5 with a request not to erect over head 33000 Volt line, being highly hazardous and dangerous. A copy of the said letter dated 9th February, 1996 is Annexure-4 to this writ application. It is stated that on 12th February, 1996, the learned counsel for the petitioner along with staff of the petitioner, namely, Raghubansh Mishra, personally went to the office of the respondent No. 4 and informed about the matter and on such information, the respondent No. 4 assured that the over head line would not be passed over the petitioner's land and it would be passed through the sanctioned road. According to the petitioner, after the assurance given by the respondent No. 4, the petitioner was assured that now no over head electric line will pass over the petitioner's land. However, all of a sudden in the night of 1 st March 1996, the respondents Nos. 4, 5 and 6, in collusion with each other, made over head electric connection through petitioner's land in order to oblige one M/s. Bindyabasbini Private Ltd. who was establishing a factory. On seeing the aforesaid act of respondents Nos. 4 and 6, the petitioner filed a written report before the Officer-in-charge, Danapur Police Station for illegal over head electric wire connection over the petitioner's land without consent of the petitioner, as such, without obtaining permission from the Senior Electrical Inspector, Bihar under Section 63 of the Indian Electricity Rules 1956. A copy of the aforesaid written report is Annexure-5 to the writ application. The petitioner, seeing the arbitrary and caltous action of the respondents authorities, filed a petition before the Sub-Divisional Officer on 9th March, 1996 and on such filing, the learned Sub-Divisional Officer, after hearing the petitioner's counsel called for a report from the respondent No. 5, fixing 11-3-1996. When the petitioner filed a written report to the Sub-Divisional Officer, a local Police Inspector inspected the ptot in question and requested the respondents Nos. 5 and 6 to remove the illegal installation of the over head electric wire but the proprietor of M/s. Bindy abasi in Pvt. Ltd., namely, Krishna Singh instead of removing the illegal electrical wire over the petitioner's land, threatened the petitioner with dire consequences. Accordingly, the petitioner filed a petition before the Sub-Divisional Officer and a non- formal F.I.R. was also todged by the petitioner and a notice under S. 144 of the Code of Criminal Procedure was issued by the Sub-Divisional Officer but by the time, the construction of 33000 Volt line to the Factory M/s. Bindyabashini Private Ltd. was already complete. The petitioner, therefore, claimed that due to illegal act committed by the respondent authorities, the petitioner was put in heavy toss and the petitioner, therefore, seeks an appropriate direction against the respondents for removal of over head electric line running over the petitioner's private residential plot.
3. A counter affidavit has been filed on behalf of respondents Nos. 2 to 6, the Bihar State Electricity Board and its Officers. According to the respondents, M/s. Bindyabashini Private Ltd.
had applied for energy in its premises for a toad of 2000 K.V.A. and 200 K.V.A. in his premises. The premises of the consumer was inspected by the Officials of the Board and after considering the economic and other requirements of construction of 33 K. V. line and as the line was to pass through open rural are a and crop fields, the nearest electrical route was adopted. The respondents further stated that except this factory, there are no residential houses around it and there are crop fields only spread all over and so the said route was adopted. The work was done as per the estimate sanctioned and the work order. The estimated cost of Rs. 3,72,940/- was charged from the consumer under Deposit Scheme 1995-96. A copy of the said scheme has been filed and marked as Annexure-A to the counter affidavit. The respondents further denied that any staff of the petitioner ever contacted the respondent No. 5. However on 9-2-1996, a letter from the petitioner was received reply of which was sent to the petitioner on 29-2-1996 with a request to visit the Office of respondent No. 5 to justify their stand but the petitioner did not turn up. The respondents further stated that the petitioner never gave any proof with respect to the land by the side of consumer's premises. Further more, the erection of poles and supply line was taken up as per the scheme and the estimate work done till March 1996 but during 5 months the owner of the land or his Manager never protested or contacted the concerned respondents. The respondents further denied the allegation of collusion or connivance of respondents Nos. 4, 5 and 6 with the petitioner. The respondents further slated that the requisition sent by the police for initiation of S. 144 Cr.P.C. proceeding was dropped by the learned Sub-Divisional Officer, Danapur on 12th March, 1996. It was further stated that the electrical installation of the factory hat- been charged on 9th March, 1996 after due verification by the Electrical Inspector, Govt. of Bihar vide his letter dated 13th March, 1996 under Rule 63 of the Indian Electricity Rules 1956 thereinafter to be referred to as the 'the Rules of 1956'). A copy of the meter installation report dated 9-3-1996 and the letter of the Electrical Inspector dated 13-3-1996 are Annexures-C and D respectively to the counter affidavit. The stand of the respondent Board is that the Board is empowered under S. 42 of the Electricity Supply Act and Telegraph Act.
4. The respondent No. 7 M/s. Bindyabashini Pvt Ltd. also filed a separate counter-affidavit in which the said respondent also took the same stand as was taken by the respondent Board. The said respondent further stated that except his factory in the area, there are no residential house around it and there are only crop fields spread all over.
5. Mr. Tara Kant Jha, learned Senior Counsel appearing on behalf of petitioner firstly submitted that the action of the respondent Board was highly arbitrary and illegal and attracts fundamental right of the petitioner. The learned counsel then submitted that it was incumbent upon the respondent authority to comply with the provisions of Section 12 of the Indian Electricity Act 1910 before laying down or placing any electrical supply line over private urban residential plot of the petitioner. The learned counsel further submitted that the respondent authorities had no jurisdiction to pass over head 33000 volt electric line through private urban residential plot without giving any notice to the petitioner, as contemplated under Section 13 of the said Act. The learned counsel then submitted that Sections 12 to 18 of the said Act are mandatory, for inter alia passing over head electric line over private urban residential land. The learned counsel also referred to Rule 63 of the Indian Electricity Rules 1956 and submitted that permission of the Senior Electrical Inspector was mandatory before supply of charges by the supplier. The learned counsel lastly submitted that although the electric line could have been given in the factory premises by passing the line from the road but the said high volt line was passed over the head of petitioner's land only with a view to give undue advantage to the said consumer.
6. On the other hand, Mr. Shiva Kirti Singh, Senior Advocate appearing on behalf of respondent Board submitted that the land in question is a vacant rural land and the respondent Board complied the requirements of Rule 63 of the said Rules. The learned counsel then submitted that no electrical pole has been erected in the land of the petitioner but only over head were passed from the petitioner's land. The learned counsel then submitted that Section 42 of the Electricity Supply Act 1948 ruled out Sections 12 to 19 and 19 of the Indian Electricity Act 1910 inasmuch as the Board shall have for the placing of any wire, poles, wall-brackets, stays, apparatus and appliances for the transmission and distribution of electricity or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the work of the Board, all powers which the Telegraphic authority possesses under Part II of the Indian Telegraph Act 1985. The learned counsel lastly submitted that in the event the petitioner proposes in future to erect new building or construction or carry out work, then he shall be entitled to make application to the respondent Board under Rule 82 of the Indian Electricity Rules 1986 thereinafter to be referred to as the 'said Rules') and the Board shall then pass appropriate order for the removal of over head electric line from the petitioner's land.
7. Mr. Ram Balak Mahto, learned counsel appearing on behalf of respondent No. 7 submitted that the electrical installation of the Factory was charged after due verification by the Electrical Inspector, Govt. of Bihar vide his letter dated 13-3-1996 under the provisions of Rule 63 of the said Rules.The learned counsel referred to Annexure-D to the counter-affidavit filed by the Board and submitted that the supply of electricity was made by the Board to the petitioner's factory after complying all the requirements of law. The learned counsel lastly submitted that the Board has taken specific stand that in case of any obstruction at the time of constructing building or structure of the petitioner, the Board shall remove the over head line.
8. In view of the fair stand taken by the respondent Board in the counter-affidavit and also the lawyer appearing on behalf of Board that in the event any construction is carried out by the petitioner in future, the petitioner may file an application under Rule 82 of the said Rules and the Board shall pass order for the removal of the over head wire, it is not necessary to go into the other questions as to whether the Board complied all the legal formalities before supplying the electricity to the premises of the private respondent. The only question that remains for consideration is to see the procedure provided under Rule 82 of the said Rules. Rule 82 reads as under:
"Rule 82 Erection of or alteration to buildings, structures, foods banks and elevation of road. -
(1) If at any time subsequent to the erection of an overhead line (whether covered with insulating material or bare), any person proposes to erect a new building or structure or food bank or to raise any road level or to carry out any other type of work whether permanent or temporary or to make in or upon any building or structure or flood bank or road, any permanent or temporary addition or alteration, he and the contractor whom he employs to carry out the erection addition or alteration, shall, if such work, building, structure, flood bank , road or additions and alteration, thereto would, during or after the construction result in contravention of any of the provisions of Rule 77, 78 or 80, give notice in writing of his intention to the supplier and to the Inspector and shall furnish therewith a scale drawing showing the proposed building, structure, flood bank, road, any addition or alteration and scaffolding required during the construction.
(2)(a) On receipt of the notice referred to in sub-rule 1 or otherwise the supplier shall examine whether the line under reference was lawfully laid and whether the person was liable to pay the cost of alteration and if so send a notice without undue delay to such person together with an estimate of the cost of the expenditure likely to be incurred to so alter the overhead line and require him to deposit within 30 days of the receipt of the notice with the supplier, the amount of the estimated cost.
(b) If the person referred to in Sub-rule (1) disputes the supplier's estimate cost of alteration' of the overhead line or even the responsibility to pay such cost, the dispute may be referred to the Inspector by either of the parties whereupon the same shall be decided by the Inspector.
(3) No work upon such building, structure, flood bank road and addition or alteration thereto shall be commenced or continued until the Inspector has certified that provisions of Rule 77, 79 or 80 are not likely to be contravened either during or after the aforesaid construction :
Provided that the Inspector may, if he is satisfied that the overhead line has been so guarded as to secure the protection of persons or property from injury, or risk of injury, permit the work to be executed prior to the alteration of the overhead line or, in the case of temporary addition, or alteration, without alteration of the overhead line.
(4) On receipt of the deposit, the supplier shall alter the overhead line within one month of the date of deposit or within such longer period as the Inspector may allow and ensure that it shall not contravene the provisions of Rules 77, 79 or 80 either during or after such construction.
(5) In the absence of an agreement to the contrary between the parties concerned, the cost of such alteration of the overhead line laid down shall be estimated on the following basis, namely :--
(a) the cost of additional material used on the alteration giving due credit for the depreciated cost of the material which would be available from the existing line;
(b) the wages of labour emptoyed in effecting the alteration;
(c) supervision charges to the extent of 15 per cent of the wages mentioned in clause (b); and
(d) any charges incurred by a supplier in complying with the provisions of Section 16 of the Act in respect of such alterations.
(6) Where the estimated cost of the alteration of the overhead line is not deposited, the supplier shall be considered as an aggrieved party for the purpose of this rule,"
9. From the reading of the afore aid Rules it appears that on such application being made, the supplier shall examine whether, the land under reference was lawfully laid and whether the person was liable to pay cost of alteration. Before removal of the overhead line, the concerned person is not only required to file an application but also to deposit necessary cost and expenditure so estimated and assessed by the supplier. Sub-rule (5) of Rule 82 provides the detail of the expenditure supposed to be borne by the person concerned.
10. The question now arises whether the petitioner would be liable to meet all the expenditure for removal of the overhead line in future in the event the petitioner proposes to construct building or other structure. In my considered opinion, when the petitioner is objecting to the supply of the overhead line from his land at the very inception and despite his objection the respondent Board erected overhead 3300 volt line passing through the land of the petitioner, the respondent Board would not be entitled to demand any expenditure or cost for the removal of the said overhead line from the petitioner. 1, therefore, hold that the petitioner shall be entitled to make an application to the respondent Board as and when the petitioner proposes to construct building/structure on his land, than in that event, the Board shall remove the overhead line within a reasonable time at its own cost and expenditure.
11. With the above direction and observation, this writ application is disposed of.