Telangana High Court
Konuru Radha Krishna vs The Southern Power Distribution ... on 13 July, 2020
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.28966 OF 2019
ORDER:
This writ petition is filed to direct the respondents 1 to 3 to permit the 1st petitioner to take up the shifting of 33 KV HT lines by over headlines as per Estimate No.D-2018-155-02-02-03-004 dated 23.03.2019 or alternatively, to direct the Municipal authorities to issue road cutting permission to the petitioners for laying 33 KV HT underground cable lines.
2. Heard Sri B. Shankar, learned counsel for the petitioners, Sri R.Vinod Reddy, learned counsel for the respondents 1 to 3, learned Government Pleader for Municipal Administration for 4th respondent, Sri Pasham Krishna Reddy, learned counsel for the respondents 5 and 6 and Sri A. Vishnu Vardhan Reddy, learned counsel for the 7th respondent.
3. Sri B. Shankar, learned counsel for the petitioners would submit that the 1st petitioner is the absolute owner and possessor of plot bearing No.32 in Ward No.16-2 in Survey Nos.98 and 113, Saidabad Mandal, admeasuring 300 square yards. The 2nd petitioner is the owner of house bearing premises No.9-2-209, admeasuring 197.85 square yards. The premises of the 2nd petitioner is abutting to the property of the 1st petitioner. Leaned counsel for the petitioners would further submit that the petitioners have purchased the said properties about 30 years ago. All the plot owners have constructed their houses KL,J 2 WP No.28966 of 2019 except the two properties of the petitioners, since from the top of their plots, 33 KV HT lines are passing. Since both the petitioners are intending to make construction in the above said plots, they have requested respondents 1 to 3 to re-locate the said 33 KV HT lines, which are passing through their plots. They have also agreed to bear the necessary expenses for the said re-location as per the Rules in vogue.
4. The petitioners have also submitted an undertaking and an affidavit to the effect that they will take the responsibility if any issue arises from the neighbours in shifting the said H.T. Lines. On receipt of the said undertaking and affidavit, the respondents 1 to 3 have given an estimation of Rs.9,22,904-55 ps. On coming to know about the said sanction, some persons, who are having eyesore on the petitioners, have started creating problem by making complaints to respondents 1 to 3 authorities. The 7th respondent Society also started insisting to get no objection from it.
5. The learned counsel for the petitioners would further submit that as suggested by respondents 1 to 3, the 1st petitioner constrained to seek quotation for underground cable, cost of shifting through poles, and the quotation is for Rs.9,22,904-55 ps. Whereas the cost through underground cable is Rs.19,52,144-63 ps. Thus, there is a clear difference of Rs.10,29,240-08 ps., plus road cutting charges of approximately Rs.6,50,000/- payable to Municipality. He would KL,J 3 WP No.28966 of 2019 further submit that the petitioners are not in a position to bear the said huge expenditure of Rs.16,79,240-08 ps.
6. It is the further contention of the petitioners that after receipt of the estimation of underground cable work, the petitioners have approached the Municipal authorities seeking permission for road cutting as per plan on 09.12.2019. again on 11.12.2019 and finally on 18.12.2019. But, there is no response. They have also approached the Executive Members of the 7th respondent Society, who in turn have demanded an amount of Rs.5,00,000/- illegally. Thus, the office bearers of the 7th respondent Society are blackmailing the petitioners by demanding the above said huge amounts. Under said circumstances, the petitioners filed the present writ petition.
7. The 3rd respondent filed counter affidavit contending that on the request of the petitioners, the site was inspected for shifting of 33 KV existing OH line. It was observed that on both sides of the road big trees are existing, which are not allowing the proposed 33 KV new OH lines. On one side of the road 11 KV HT Line/poles along with trees are existing and hence, there is no space for the proposed new 33 KV new OH line/Towers. Hence, shifting of existing 33 KV OH line with new OH line is not feasible technically. At the same time, colony residents also objected for erection of 33 KV proposed new OH line through their colony/houses as the trees existing in their houses and on the road are to be cut in big way for passing the proposed new OH line and also the proposed line would come closer KL,J 4 WP No.28966 of 2019 to their houses. Therefore, the petitioners have given their willingness to execute the work by themselves with underground cable by way of furnishing an affidavit and undertaking. Accordingly, the estimate for shifting the existing 33 KV line with underground cable is prepared, proposed and finally sanctioned on 03.01.2020 for an amount of Rs.19,63,073/-. The same was informed to the 1st petitioner to execute the work by himself with a licensed contractor under the supervision of the department only after payment of Rs.7,43,266/-.
8. It is further contended by the 3rd respondent that the 1st petitioner has not paid 10% of the supervision charges of Rs.7,43,266/- till today. The work will be taken up only after payment of the said amount and subject to condition that there should not be any objection from the neighbours and GHMC, which is the responsibility of the petitioners. It is further stated that they have not requested for any no objection from the 7th respondent Society and it is the petitioners who have given undertaking to take the entire responsibility of clearing objections from the neighbours as it is a Deposit Contributory work. Basing on the site condition, as there is no way to pass the 33 KV proposed new OH line except with underground cable, the petitioners have given their consent to proceed with underground cable. Accordingly, on their consent only, the estimation for the underground cable has been prepared and was given to the petitioners.
KL,J 5 WP No.28966 of 2019
9. The 3rd respondent has filed the copies of affidavit of the 1st petitioner, declaration of both the petitioners, the proceedings vide LR.No.SE/SCADA/DE(T)/ADE(T&M)/AE(T)/F.No.DCW/D.No.367 9/19-20, dated 31.12.2019 of the Superintending Engineer of the 1st respondent Corporation along with counter.
10. The 7th respondent has also filed its counter contending that the 2nd petitioner is not the Member of the 7th respondent Association. The plot claimed by the 2nd petitioner is falling in different colony plan and survey number, which will come under the limits of Chempapet, L.B. Nagar Municipality, and therefore, the petitioners have no right or manner to interfere with the legal and peaceful affairs or property belongs to the 7th respondent Society. It is further contended by the 7th respondent that the Society of the 7th respondent was formed 30 years back. At the time of making house plots of the Society for its members, the Society has specifically left the said plot in the border for erecting present electrical pole for the sake of entire colony. The 2nd petitioner, being an adjacent colony dweller unauthorizedly encroached, illegally occupied the alleged existing 33 KV HT line (pole) place, by exhibiting his illegal and unsocial activities. The 1st petitioner is a builder by profession and with an intention to construct commercial apartments, in collusion with the 2nd petitioner, trying to shift the existing 33 KV HT line. Therefore, the same cannot be permitted. There is a boundary dispute between the adjacent colony people with the 7th respondent Society and they have KL,J 6 WP No.28966 of 2019 also applied for survey and the same is pending. It is further contended that the 7th respondent that they never demanded any money much less an amount of Rs.5,00,000/- as alleged by the petitioners. The petitioners have to obtain no objection from the 7th respondent Society for shifting of the said HT lines and the petitioners approached this Court by suppressing the real facts with an intention to construct apartments. With the said contentions, the 7th respondent sought to dismiss the present writ petition.
11. From the above said pleadings, it is not in dispute that the 1st petitioner is the owner and possessor of plot bearing No.32 in Ward No.16-2 in Survey No.98 and 113, Saidabad Mandal. The 2nd petitioner is the owner of premises bearing No.9-2-209, which is abutting the 1st petitioner's property. It is also not in dispute that 33 KV HT lines are passing through top of the above said properties of the petitioners and they have approached the respondent authorities for shifting /re-locating the said 33 KV HT lines from their plots. The petitioners have also submitted an affidavit and an undertaking as sought by the respondents 1 to 3. A memo dated 23.03.2019 was issued estimating an amount of Rs.9,22,904.55 ps., stating that the petitioners are intending to construct houses in their properties and due to the existence of 33 KV OH line in their plots, it will be very inconvenient for them for construction of their houses. On the request of the petitioners, the said estimation was given on the ground that the petitioners are ready to pay the necessary shifting charges as per the KL,J 7 WP No.28966 of 2019 departmental procedure. Therefore, the estimate was prepared and submitted for necessary sanction under DC Works for the year 2018-
19. A similar sanction was also issued for the financial year 2019-20.
12. The Superintending Engineer of Southern Power Distribution Company of Telangana Limited has issued proceedings in Lr.No. SE/SCADA/DE(T)/ADE/(T&M/AE(T)/F.NO.DCW/D.NO.3679/19- 20, dated 31.12.2019, estimating for shifting of 33 KV OH Line by removing of 3 No.s Iron Poles and by erecting 2 No.s M+3 Towers. The estimation was given for Rs.7,43,266/- on certain conditions. The petitioners were requested to pay the said amount of Rs.7,43,266/- by way of demand draft in favour of the Superintending Engineer.
13. The petitioners have also submitted a letter dated 06.12.2019 to the 6th respondent with a request to accord permission for road cutting and they have submitted an application for the said purpose. A similar letter dated 18.12.2019 was submitted to the 6th respondent by the petitioners with a request to prepare estimate for the road cutting and laying of 33 KV underground cable. They have enclosed the Power Distribution sanction. They have also requested to stop laying of the CC road for four weeks.
14. It is relevant to note that the 2nd petitioner filed an appeal before the Vidyut Ombudsman for the State of Telangana vide appeal No.1 of 2017 against the order dated 24.12.2016 of CGRF. An award dated 03.03.2017 was passed by the Vidyut Ombudsman for the State KL,J 8 WP No.28966 of 2019 of Telangana. In the said Award, it is specifically recorded about Clause 5.3.4 of General Terms and Conditions of Supply and also Clause No.5.4.1.4. In the said Award, it is specifically stated that there is no provision either under GTCS or in any regulation directing the DISCOM to bear the cost of shifting of HT line at the request of a citizen. Still the request of the 2nd petitioner for shifting of 33 KV HT cannot be ordered without there being any inclination on his part to bear the cost of shifting of the line away from his house as required under Clauses 5.3.4 and 5.4.1.4 of CTCS.
15. It is also apt to note that the Superintending Engineer of Southern Power Distribution Company of Telangana Limited has issued proceedings dated 31.12.2019 informing about the sanction granted by the respondents 1 to 3 authorities for shifting of the HT lines and an estimation of Rs.7,43,266/- on certain conditions mentioned therein. The said proceedings are not in dispute. The 3rd respondent himself filed the said proceedings. Even in the counter, the 3rd respondent has reiterated about the said estimation, preparation, process and sanction of the same on 03.01.2020.
16. Though the learned counsel for the 7th respondent has contended that the petitioners have to obtain no objection from the 7th respondent Society as per law, he has not placed any Rule or Provision in support of his contention. Therefore, the 7th respondent cannot insist to get no objection from it by the petitioners.
KL,J 9 WP No.28966 of 2019
17. Thus, on perusal of the said contents of the counter filed by the 3rd respondent and also the proceedings dated 31.12.2019 issued by the Superintending Engineer, the respondents 1 to 3 authorities have expressed their readiness with regard to shifting of the existing 33 KV line and permission was accorded in exercise of powers under Section 42.1 of the Electricity Act, 2003. As per Clause 5.4.1.4 of the General Terms and conditions of Supply (GTCS), once the service line is laid, it cannot be shifted or transferred without permission of the DISCOM. Clause 5.3.4 of GTCS deals with charges for shifting of service. The estimate for shifting the existing service will cover the following items as chargeable to the consumer.
i) dismantling charges at the old site;
ii) transport charges from old site to new site;
iii) re-erection charges at new site; iv) depreciation on the old material if any not re-used at the site; v) over-head charges; vi) cost of new materials if required; and vii) cost of irretrievable materials.
The consumer shall pay the said charges including in the estimate in advance before taking of shifting charges.
18. Respondent Nos.1 to 3 have prepared estimation, processed and finally sanctioned on 03.01.2020. Vide proceedings LR.No.SE/SCADA/DE(T)/ADE/(T&M/AE(T)/F.NO.DCW/D.No.367 9/19-20, dated 31.12.2019, the petitioners were informed about the said sanction on certain conditions and to pay an amount of Rs.7,43,266/- by way of a demand draft. The petitioners have to pay 10% of the said supervisory charges of Rs.7,43,266/-, which KL,J 10 WP No.28966 of 2019 according to the 3rd respondent, the petitioners have not paid. On payment of the said amount only, the work will be taken up.
19. Considering the above said contentions of the respondents 1 to 3 in the counter affidavit and also the proceedings Lr.No. SE/SCADA/DE(T)/ADE/(T&M/AE(T)/F.NO.DCW/D.NO.3679/19- 20, dated 31.12.2019 issued by the Superintending Engineer of the 1st respondent Corporation, this Writ Petition is disposed of with the following directions:
a) the respondents 1 to 3 shall permit the petitioners to take up the shifting of 33 KV OHHT Lines in accordance with the proceedings Lr.No.SE/SCADA/DE(T)/ADE/(T&M)/AE(T)/F.No.DC W/D.NO.3679/19-20, dated 31.12.2019 issued by the Superintending Engineer, SCDA Circle, TSSPDCL, GTS Colony, Erragadda, Hyderabad;
b) the petitioners shall comply with the conditions mentioned therein including payment of the charges mentioned therein;
c) the respondents 5 and 6 shall cooperate with the petitioners and respondents 1 to 3 in shifting of the said line;
d) the Members of the 7th respondent Society shall also cooperate with the petitioners as well as the respondents 1 to 3 in shifting the above said 33 KV HT Lines;
KL,J 11 WP No.28966 of 2019
e) the respondents 1 to 3 shall not insist the petitioners to get no objection from the respondent 7 in shifting of HT Lines;
f) the 7th respondent shall not insist the petitioners directly or indirectly to obtain no objection from it for shifting of HT Lines; and
g) the above said entire exercise shall be completed within a period of three (3) months from the date of receipt of a copy of this order.
However, there shall be no order as to costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed.
_________________ K. LAKSHMAN, J Date:13-07-2020 KTL