Calcutta High Court (Appellete Side)
Debaprasad Das vs West Bengal State Electricity ... on 20 January, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(Appellate Side)
Reserved on: 13.01.2022
Pronounced on: 20.01.2022
FMA 102 of 2017
With
CAN 1 of 2017
(Old No. CAN 6634 of 2017)
(Through Video Conference)
Debaprasad Das
...Appellants
-Vs-
West Bengal State Electricity Distribution Company Limited and Others
...Respondents
Present:-
Mr. Ram Mohan Pal, Advocate
... for the appellant
Mr. Sujit Sankar Koley, Advocate
... for the WBSEDCL
Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA,
CHIEF JUSTICE
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE,
JUDGE
Ajoy Kumar Mukherjee, J:
1. Being aggrieved by and dissatisfied with the order dated 7th June,
2016 passed by a Single Bench in W.P. 21706 (W) of 2015 (Debaprasad
Das vs West Bengal State Electricity Distribution Company Limited and
others), present appellant Debaprasad Das preferred this mandamus appeal
on the grounds inter alia that the learned Single Bench ought to have
considered that the respondent Electricity Board admitted that high-
tension electric post has been installed at the petitioner's plot No. 929 and
he ought to have considered that in the reply notice dated 05.06.2015, the
2 FMA 102 of 2017
electricity authority agreed to remove the high-tension electric line from
the said plot No. 929, if the writ petitioner agreed to pay shifting charges .
Learned Single Bench also failed to consider that the initial report filed by
respondents No. 9 reveals that two naked electric poles are erected at plot
No. 929 just at the verge of Panchayat Road. Learned Single Bench ought
to have make direction to the electric authority for removal of electric
posts and electric line from the property of the petitioner and instead of
that he is erred in holding that the electricity authority did not install
naked electric poles at the aforesaid property of the writ petitioner.
2. Petitioners case in a nutshell is that by a registered deed dated
18.09.1984, petitioners became absolute owner and occupier of plot No.
929 and his name has also been duly recorded in LR Record of Rights. On
04.07.2014 petitioner filed written objection to the respondent/electricity
authority for removing the electric posts from the private property of the
writ petitioner at plot No. 929 installed by the respondents /electricity
authority, forcibly and illegally and also for illegally passing electric wire
through the property of the petitioner causing damage and obstruction to
build dwelling house in the petitioners own property at plot No. 929. On
12.09.2014 petitioners filed another written objection to the
respondents/electric supply authority, for not installing new electric posts
at the plot No. 929, owned by writ petitioner. On 13.02.2015 the petitioner
again issued and served notice to the respondents/ electricity authority not
to install further new transformer at the property of the writ petitioner at
plot No. 929. The respondent electricity authority have no right to install
electric posts or electric transformer at private absolute property of the writ
petitioner, but inspite of the objection raised by petitioner, they are
illegally and forcibly passing high voltage electricity line through installed
3 FMA 102 of 2017
electric posts and transformer at the private property of the petitioner.
Actually they have trespassed into the private property of the writ
petitioners at suit plot No. 929 and installed high voltage electric line
and thereafter again installed 3 (three) naked cemented electric posts,
trespassing into the petitioner's property with a motive to install new
electric transformer. In the above background writ petitioner moved
present writ petition under Article 226 of the Constitution of the India
with a prayer for issuing rule, commanding the electricity authority to
remove the electric posts and electric line from the private property of the
writ petitioner at plot No. 929 and also to issue rule of prohibition
restraining respondents electricity authority not to install further electric
posts and/or electric transformer and / or electric line at the private
property of the writ petitioner .
3. Learned Single Bench called for a report from concerned BLLRO,
whether any pole has been erected on the plot of land of the petitioner
and BLLRO filed affidavit which provides complete and specific answer
to the dispute on 05.04.2016 stating, two naked poles have been erected
in plot No. 289 which are piece of land belonging to the State. Learned
Single Bench after being satisfied that said naked poles have not been
erected on land of petitioner, as reported by BLLRO and also finding
no substance in petitioners contention that he is willing to make residential
house on plot No. 929 after complying formalities regarding conversion,
was pleased to dismiss the writ petition.
4. We have carefully considered the documents available on record.
From the report dated 17.11.2015 filed by S.E. & Project Manager
WBSEDCL, it appears that one spot verification was carried out on
03.11.2015 by the representative of their office in presence of the
4 FMA 102 of 2017
petitioner. Said inspection reveals that only two naked poles were erected
under BRGF scheme beside village morum road but no transformer was
installed due to objection raised by the petitioner. It further reveals from
the said report that another existing 11 k.v. electric line is passing through
the petitioner's plot no. 929 and two H.T. poles attached to this existing
line were erected on the petitioners plot No. 929 at least 20 years back.
Said statement by WBSEDCL also finds support in the report of BLLRO
dated 05.04.2016, which says that high tension electric line are present
since past above the LR plot No.929 from South West to North East
direction and a pole exists therein which was erected earlier in the land of
the petitioner.
5. Accordingly position in the present case is that a separate high
tension line of 11 k.v. and two H.T. poles exists over petitioner's plot No.
929 for at least 20 years as a feeder line, so that the villagers can avail
electricity. It is true that in the present case a serious dispute has been
raised as to whether two new naked poles having no transformer, installed
recently on writ petitioner's plot No. 929 or on government plot No. 289.
In this context it is also to be mentioned that admittedly writ petitioner
raised objection only on 04.07.2014 for removal of existing electric posts
with high tension line from the private property of the writ petitioners at
plot No. 929 installed by the respondents and regarding erection of new
electric poles, he had raised further objection on 12.09.2014 when two
new naked electric poles were erected therein for installation of new
transformer. There is also nothing in the record to show that petitioner
raised any objection about existence of said 11 k.v. high tension line over
his said land of 929 which was erected and installed about 20 years back.
Though petitioner stated that the electricity authority forcible and illegally
5 FMA 102 of 2017
erected those poles and /or passed high voltage electric line over the
property of the writ petitioners, but we do not find any document in
support of the same. Presently when two naked poles are erected in that
of place for installation of a new transformer, only then petitioner has
come up before the writ court, for not only shifting those two naked
poles from his land but also the previously installed aforesaid 11k.v.
high tension line which was installed over his land at least 20 years
back.
6. Learned counsel for the respondents in this context have drawn
our attention to section 164 of The Electricity Act, 2003, which provides
that the licensee can exercise power of telegraph authority in certain cases.
Section 68 of said Act deals with the provisions for installation of over
head 11 k.v. lines and section 168 of the Act gives protection for action
taken by the said authority in good faith.
7. Having regard to the said fact and in the absence of any objection
or litigation , we have sufficient reason to believe that at least 20 years
back when aforesaid 11 k.v. high tension line and two H.T. poles
attached to that existing line were erected on petitioner's plot No. 929, it
was erected and installed in accordance with law, in order to distribute
electricity to the villagers. Present two naked poles are erected recently
under BRGF scheme for installation of new transformer and being
aggrieved by such act of the respondents/electric authority, petitioner has
filed the writ petition with a prayer for shifting not only said two naked
poles which are installed recently but also prayed for shifting of over head
11 k.v. line which exists in the plot No. 929 for at least 20 years.
8. While this controversy going on between the parties the
divisional Engineer , (Tech-1) WBSEDCL vide his letter dated 23.03.2021
6 FMA 102 of 2017
appraised writ petitioner that upon inspection, they have observed that
shifting of 11 k.v. line from the plot of petitioner as claimed by him may
be possible by erection of two new 4 pole structure along with the other
allied works, on condition that the writ petitioner will have to bear whole
costs of the scheme for the said shifting work and if any problem arises
petitioner will have to sort it out.
9. Having regard to the above facts and circumstances of the case,
we dispose of this appeal with a direction upon respondents /electricity
authority to submit an estimated cost of shifting works in terms of their
letter dated 23.03.2021 to the petitioner within four weeks of the order
and petitioner will be at liberty to deposit that estimated costs of shifting
work to the respondents /electricity authority. On being such deposit made
by the petitioner Debaprasad Das, the respondent/electricity authority shall
carry out the shifting of newly erected naked poles as well as shifting of
11 k.v. high voltage line from the petitioners plot No. 929 in terms of
their letter dated 23.03.2021 within a period of 4 weeks.
10. FMA 102 of 2017 is accordingly disposed of.
11. There will be no order as to costs.
12. Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(PRAKASH SHRIVASTAVA)
CHIEF JUSTICE
(AJOY KUMAR MUKHERJEE)
JUDGE
Kolkata
20.01.2022
