Gauhati High Court
Monoj Kumar Bora vs The Assam State Electricity Board & Ors on 29 July, 2016
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
FOR REPORTING
WP(C) NO.4854 OF 2009
SRI MONOJ KUMAR BORA,
Son of late Ghana Kanta Bora,
Resident of Village: Bihpuria, Ward No.4,
PO: Bihpuria, District: Lakhimpur, Assam.
........Petitioner
-Versus-
1. THE ASSAM STATE ELECTRICITY BOARD, duly represented by
its Chairman, Bijuli Bhawan, Paltan Bazar, Guwahati -
781001.
2. THE EXECUTIVE ENGINEER, North Lakhimpur Electricity
Division, North Lakhimpur, District: Lakhimpur, Assam.
3. THE SUB-DIVISIONAL OFFICERS,
Bihpuria Electricity Sub-Division, District: Lakhimpur, Assam.
4. THE DEPUTY GENERAL MANAGER (HR),
Bijuli Bhawan, Paltan Bazar, UAEDCL, Guwahati - 781001.
5. SENIOR MANAGER,
North Lakhimpur Electrical Division, UAEDCL,
North Lakhimpur.
6. DEPUTY COMMISSIONER,
Lakhimpur, District: Lakhimpur, Assam.
........Respondents
For the Petitioner : Mr. C. Baruah, Senior Advocate.
: Mr. T. Baruah, Advocate.
For the Respondent Nos.1 and 5 : Mr. S. Chakraborty, standing counsel, ASEB.
For the Respondent No.6 : Ms. M. Goswami, Government Advocate.
B E F O R E
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
Date of hearing : 21st July, 2016.
Date of Judgment & Order : 29th July, 2016.
WP(C) No.4854/2009 Page 1 of 9
JUDGMENT & ORDER
Heard Mr. C. Baruah, learned senior counsel for the petitioner. Also heard Mr. S. Chakraborty, learned standing counsel, ASEB, appearing for the respondent Nos.1 to 5 and Ms. M. Goswami, learned State counsel, appearing for the respondent No.6.
[2] This is an application under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondent authorities to remove the transformer installed at the entrance of the petitioner's private land and the high tension overhead electrical lines passing over the private land of the petitioner covered by Dag No.2062 of Patta No.27 under Bihpuria Revenue Circle.
[3] The case projected by the petitioner in the writ petition is that the petitioner possesses the aforesaid land, which measures 3 Bighas with a breadth of 60 feet. During the lifetime of his father, the respondent, Assam State Electricity Board (for short, "Board") without knowledge, permission or consent of the father of the petitioner, had put the overhead electrical lines across the aforesaid land and on protest being made by the father of the petitioner, the respondent No.2 assured the father of the petitioner that the same would be removed. After the father of the petitioner died in the year 1991, he renewed such request but without any avail.
[4] The Board took steps to set up a transformer by the side of N.T. Road where the land of the petitioner is situated and started laying foundation for installing a transformer and pulling high voltage overhead wires without any notice in violation of Section 12(2) of the Indian Electricity Act, 1910 (for short, "1910 Act"). No consent or permission was also obtained from the petitioner. The petitioner lives a little away from the aforesaid plot of land and by the time he came to know about the aforesaid steps, installation of transformer and pulling of overhead high tension electrical wires had already taken place. A representation was submitted by the petitioner on 24.09.2005 to the respondent No.3 and also to the Deputy Commissioner on 26.09.2005. On being asked by the Deputy Commissioner, North Lakhimpur, the petitioner had given a written undertaking on the body of the representation that he would bear all the expenses for shifting of the transformer and the said representation was forwarded to the respondent No.2. As no action was taken, the petitioner was compelled to file a writ petition being WP(C) No.4854/2009 Page 2 of 9 WP(C) No.8492/2005 and the said writ petition was disposed of by order dated 11.08.2008 directing the respondent authorities to consider the grievance of the petitioner and to decide the same in accordance with law, as expeditiously as possible, preferably within a period of 3(three) months from the date of furnishing a certified copy of that order. However, despite repeated requests made by the petitioner, no steps were taken by the respondents to comply with the directions of this Court but it was informed by the Deputy General Manager (HR) of the Board that they would stand by the affidavit-in- opposition filed by the Board in the aforesaid writ petition.
[5] An affidavit-in-opposition was filed by the respondent Nos.1 to 5 and the successor Company of the Board, i.e. Assam Power Distribution Company Limited (for short, "APDCL"). In the said affidavit, it is pleaded that a writ petition was filed earlier to WP(C) No.8492/2005, being WP(C) No.7762/2005, which was withdrawn on 02.12.2005. In WP(C) No.7762/2005, prayer was made for shifting the transformer. While denying the averments made that the respondent Board had drawn the overhead electrical line across the land of the petitioner during the lifetime of his father without his knowledge, permission or consent, it is averred that the electrical line was constructed and commissioned prior to September, 1984 and the land was transferred in the name of the father of the petitioner only on 21.01.1989. No complaint was lodged on 15.12.1990 as alleged and the plea taken by the petitioner that assurance was given to shift the line is a concocted story. No complaint was lodged for long 21(twenty-one) years before filing of the writ petition and for the first time, grievance was expressed by filing WP(C) No.7762/2005, after about 21(twenty-one) years. While stoutly denying that the transformer was installed at the middle of the entrance of the petitioner's land, it is stated that the distribution transformer was installed and commissioned on a roadside Government reserved land covered by Dag Nos.2151 and 2152 on 16.11.2005 after obtaining due permission from the Circle Officer, Bihpuria Circle and No Objection Certificate from the Vice-Chairperson of Bihpuria Town Committee and the installation of the transformer was occasioned by public demand. The transformer is well guarded by security fencing and the distance of the transformer from the plot of land of the petitioner on the side of his entry is approximately 65 feet. It is also averred that there is a nullah (drain) in front of the petitioner's land and the subject distribution transformer is located in between N.T. Road and the drain on the Government reserved land.
WP(C) No.4854/2009 Page 3 of 9[6] Mr. C. Baruah, learned senior counsel for the petitioner has submitted that this Court in WP(C) No.8490/2005 in the order dated 24.01.2006 had made an observation that the electrical lines were laid over the land of the petitioner in violation of Section 12(2) of the 1910 Act and had required the learned standing counsel, ASEB to inform the Court as to whether permission was obtained from the writ petitioner or from his predecessor-in-interest. No such information was furnished and even in the affidavit-in- opposition filed in the instant case, the issue of obtaining the permission is skirted. Mr. Baruah has strenuously urged that when the petitioner is agreeable to shift the transformer as demonstrated in the body of the representation dated 26.09.2005, there could not have been any justification on the part of the ASEB in refusing to do the needful so that the transformer and consequently, the line, can be shifted. Drawing attention of the Court to the affidavit-in-opposition filed by the Board in WP(C) No.8492/2005 annexed as Annexure-E series to the writ petition, Mr. Baruah has submitted that in the present affidavit-in-opposition the Board had put forward pleas, which were not set out in the earlier affidavit-in-opposition filed and, therefore, the Board cannot be allowed to shift its stand.
[7] Mr. Chakraborty, learned counsel appearing for the respondent Nos.1 to 5 has submitted that when the electrical lines were commissioned in the year 1984, the father of the petitioner was nowhere in the picture, as the plot of land was transferred to him only on 21.01.1989 and, therefore, the plea set up by the petitioner that no consent or permission was taken from the father of the petitioner and thus setting up of the line was in violation of Section 12 of the 1910 Act, is without any basis. A false plea has been raised by the petitioner that the transformer was installed and commissioned in the middle of the entrance to the petitioner's land when there was a gap of 65 feet in between the boundary of the petitioner's land and the transformer located in Government land, separated by a drain. Merely because the petitioner had stated that he is agreeable to bear the expenses for shifting the transformer, the transformer cannot be shifted, which does not cause any obstruction or inconvenience to anyone and when it does not obstruct the entrance to the petitioner's plot of land in any manner. He further submitted that no new pleas have been taken in the affidavit-in-opposition filed by the respondents, except giving better particulars relating to the dispute and in an event, the petitioner had opportunity to rebut the same by filing reply affidavit. He submits that there is no merit in the writ petition and accordingly, the same is liable to be dismissed.
WP(C) No.4854/2009 Page 4 of 9[8] I have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record.
[9] It must be noted at this juncture that no affidavit-in-reply was filed by the petitioner to the aforesaid affidavit-in-opposition, which was filed on 27.11.2012. In absence of a rebuttal, it has to be accepted that whatever right, title and interest the father of the petitioner had in the plot of land was only after the land was transferred to him on 21.01.1989, a categorical stand taken in the affidavit to that effect. Another categorical stand taken in the affidavit was that the electrical line was constructed and commissioned prior to September, 1984. Even in the affidavit filed in the earlier writ petition being WP(C) No.8492/2005, it was pleaded by the Board that the high tension line was commissioned after obtaining due approval from the State Electrical Inspectorate prior to 27.09.1984. It is, however, to be noted that details regarding ownership of land of the father of the petitioner was not mentioned in the earlier affidavit.
[10] The writ petitioner ought to have given material particulars, at least, from the date when he or his father had right, title and interest in respect of the plot of land in question over which the overhead line was drawn. The writ petitioner did not disclose the aforesaid fact. Merely because the respondent Board had not adverted to transfer of the land in the name of the father of the petitioner on 21.01.1989 in the affidavit filed in WP(C) No.8492/2005, the Board cannot be pinned down to the very same averments made in the earlier affidavit. It is not a new plea taken by the Board but it is a case of furnishing of particulars. If the facts pleaded by the respondent Board were not correct, nothing prevented the writ petitioner to controvert and deny the same by laying before the Court materials acceptable to the Court. The petitioner, as noticed earlier, did not file any reply affidavit controverting the facts.
[11] In paragraphs 8 and 9 of the writ petition, the petitioner has stated as follows:-
"8. That the petitioner states that by the time the petitioner has come to know the installation of the transformer over his said plot of land, the respondent Board has already pulled high tension overhead electric wires over the petitioner's land which has now rendered the land unfit for residential or any other purpose as the high tension electric wires have made the land dangerous for human and animal habitation.WP(C) No.4854/2009 Page 5 of 9
9. That the petitioner being aggrieved by the installation of the transformer at the entrance to his plot of land pulling of high tension overhead electric wires passing over his land without obtaining prior permission and consent from the petitioner, the petitioner on 24-09-05 has submitted a representation before the Assistant Executive Engineer, A.S.E.B., Bihpuria Sub- Division for shifting of the transformer. The said application was received by the Sub-Divisional Officer, Bihpuria Electrical Sub-Division, A.S.E.B., Bihpuria on 24-09-05. But no action was taken on the representation submitted by the petitioner."
[12] Section 12 of the 1910 Act is quoted hereinbelow for ready reference:
"12. Provision as to the opening and breaking up of streets, railways and tramways -
(1) Any licensee may, from time to time but subject always to the terms and conditions of his license, within the area of supply, or, when permitted by the terms of his license to lay down or place electric supply-lines without the area of supply, without that area-
(a) Open and break up the soil and payment of any street, railway or tramway;
(b) Open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c) Lay down and place electric supply-lines and other works;
(d) Repair, alter or remove the same; and
(e) Do all other acts necessary for the due supply of energy.
(2) Nothing contained in sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner or occupier concerned, as the case may be, to lay down or place any electric supply line, or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, wherever or whereunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee:
Provided that any support of an overhead line or any stay or strut required for the sole purpose of securing in position any support of an WP(C) No.4854/2009 Page 6 of 9 overhead line may be fixed on any building or land or, having been so fixed, may be altered, notwithstanding the objection of owner or occupier of such building or land, if the District Magistrate or, in a Presidency town, the Commissioner of Police by order in writing so directs:
Provided also, that, if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or, in a Presidency town the Commissioner of Police may by order in writing direct any such support, stay or strut to be removed or altered.
(3) When making an order under sub-section (2), the District Magistrate or the Commissioner of Police, as the case may be, shall fix the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.
(4) Every order made by a District Magistrate or a Commissioner of Police under sub-section (2) shall be subject to revision by the State Government.
(5) Nothing contained in sub-section (1) shall be deemed to authorise or empower any licensee to open or break up any street not repairable by the Central Government or the State Government or a local authority, or any railway or tramway, except such streets, railways or tramways (if any), or such parts thereof, as he is specially authorised to break up by his license, without the written consent of the person by whom the street is repairable or of the person for the time being entitled to work the railway or tramway, unless with the written consent of the State Government:
Provided that the State Government shall not give any such consent as aforesaid, until the licensee has given notice by advertisement or otherwise as the State Government may direct, and within such period as the State Government may fix in this behalf to the person above referred to, and until all representations or objections received ill accordance with the notice have been considered by the State Government.
(6) In this section, 'occupier' of any building or land means a person in lawful occupation of that building or land."WP(C) No.4854/2009 Page 7 of 9
[13] Perusal of Section 12 of the 1910 Act goes to show that it authorises a licensee, subject to the terms and conditions of his licence, to lay down or place any electric supply line after obtaining consent of the local authority or of the owner or occupier concerned, as the case may be.
[14] When the lines were in existence much before the petitioner or his predecessor acquired ownership of the land, no occasion arose for the Board to obtain consent of the petitioner or his predecessor to lay down or place any electric supply lines and, therefore, assailment made on the touchstone of violation of Section 12 of the 1910 Act is without any merit.
[15] So far as the transformer is concerned, it was installed just under the existing electrical line in a Government reserved land identified by the Circle Officer, Bihpuria Revenue Circle and not on the land belonging to the petitioner. Before installation of the transformer, necessary clearances from the concerned authorities were obtained and the same is stated to be guarded by security fencing.
[16] The picture that is sought to be projected is as if the high tension overhead electrical lines were pulled after the transformer was installed. It is on record that the transformer was installed only in the year 2005 and the overhead high tension electrical wires existed from the year 1984. The statements made in paragraph 8 are contradictory to paragraph 5 of the writ petition inasmuch as statements are made that in the year 1991, the petitioner's father submitted a reminder to remove the overhead electrical lines. Submission of representation in the year 1991 is denied by the respondents. However, such plea of the writ petitioner also goes to show that the electrical lines were in existence not after the transformer was installed but from much before. The transformer is installed in the Government reserved land covered by Dag Nos.2151 and 2152 (Part) and the said transformer was needed to be installed because the old existing transformer was overloaded with increasing demands. Apparently, a false plea was raised in the representation dated 24.09.2005 (Annexure-C of the writ petition) addressed to the Assistant Executive Engineer, ASEB, Bihpuria Sub-Division that an electrical transformer foundation was laid on the middle place of the petitioner's own cultivating land by the side of N.T. Road. In the representation addressed to the Deputy Commissioner (Annexure-D of the writ petition) also, wrong statement was made that a transformer is being installed in his own plot of land. Merely because the petitioner proposes to bear the expenses of WP(C) No.4854/2009 Page 8 of 9 shifting of the transformer, no mandamus can be issued to the Board when the Board installed the transformer after obtaining No Objection Certificate from Circle Officer, Bihpuria Circle and also from Bihpuria Town Committee, in a Government reserve land.
[17] Upon consideration of the materials on record and after hearing the learned counsel appearing for the parties, I am of the considered opinion that no case is made out for issuance of a writ of mandamus to the respondent authorities to remove the overhead lines and the transformer.
[18] Resultantly, the writ petition is dismissed. No cost.
JUDGE
M. Sharma
WP(C) No.4854/2009 Page 9 of 9