Shri K.S. Cheema & Ors. vs M.C.D. & Anr.
2001 Latest Caselaw 160 Del

ORDER

Manmohan Sarin, J.

1. By this common order I would be disposing of CM.10056/2000, moved by the petitioner seeking a restraint on respondent No.2 Delhi Vidyut Board from raising any further construction of the sub-station, till the disposal of the writ petition; and CM.7395/97 moved by the respondent Delhi Vidyut Board seeking modification/clarification of the order dated 28th May, 1997. Pleadings in both the applications are complete.

2. Before dealing with the said two applications, it may be noted that petitioners have filed the present writ petition, challenging the action of the respondent Delhi Vidyut Board in constructing a sub-station at a site meant for a district park as per the lay out plan and the Zonal Development Plan. Rule in the writ petition has been issued on 28th of May, 1997.

3. Petitioners contend that it is not permissible to convert the district park for use as an Electric sub-station. The misc. application filed by the petitioners, viz. CM.1982/97, seeking restraint on construction was disposed of on 28.5.1997, after recording the submissions of the respondents in the following terms:

"He further reiterates that all precautions shall be taken and the sub-station will be covered by stone masonary boundary wall which will ensure that it is not visible from outside and to prevent hazards. The counsel further states that the distance between the sub-station and the boundary wall is about 75 feet. The wiring of the sub-station, if any, installed shall not be over-ground and shall be laid underground. The structure which may come up shall in any case be subject to the ultimate decision in the writ petition. The respondents shall ensure that it does not cause any inconvenience to all persons frequenting that area and visiting the place of worship."

4. The case of the petitioners is that the respondent Delhi Vidyut Board has not complied with the above order, despite assurance given, as further recorded in the order dated 1st of May, 1998, and is carrying out the construction in violation of the order dated 28.5.1997. A Local Commissioner had also been appointed, whose report has been received showing that the respondents have failed to keep the minimum distance of 75 ft. from the boundary wall, which has been found, at places, to be 15 ft. only.

5. Learned senior counsel for the petitioners, Mr. KTS Tulsi has submitted that the sub-station is being constructed in a district park in violation of the Zonal Development Plan. He submits that the construction of the sub-station would endanger the lives of persons living in the vicinity and, especially, followers and devotees visiting the Gurudwara. As per the petitioner, there has been repeated violation of the terms set out in the order dated 28.5.1997 and that petitioner was constrained to move several applications. The report of Local Commissioner confirms that respondents have violated an essential condition of maintaining a distance of 75 ft. from the boundary wall of the Gurudwara. Learned counsel laid considerable emphasis that respondents, as late as 1st May 1998, reiterated that there had been no violation of the order dated 28th May, 1997 and that construction was being made keeping in view the said order. It was contended that in these circumstances, an immediate restraint order be passed, restraining the respondents from carrying out any further construction and from energizing or commissioning the sub-station.

6. Learned counsel for the petitioner, while relying on the decisions in Bhanuprasad Chhotalal Shroff and Anr. Vs. Kachhiya Amritlal Gordhandas (1987 (2) Gujarat Law Reporter 1336) and Abid Ali Vs. J.N. Singh, Regional Manager, U.P. State Road Transport Corporation, Jhansi (1992 (098) Crl.J. 0692 All.) submitted that once the respondents had been found to be in breach of the order dated 28th May, 1997 and the undertaking given to keep the distance of 75 ft., they must be directed to stop the construction forthwith and restore status-quo ante by demolishing the structure as made and directed to keep a distance of 75 ft. to ensure strict compliance with the assurance given. He submitted that it was on account of these difficulties that petitioner had been insisting all along in the writ petition for allotment of an alternate site for the sub-station.

7. Reply to the application has been filed by the respondents. Respondents submit that the construction of sub-station has been completed. It has been energized and commissioned on 19th December, 2000. Only finishing aspects in the premises are being attended to. The present application moved by the petitioners is claimed to be an abuse of the legal process and not maintainable since a number of previous applications, viz. CMs.1982/97, 5741/97, 6697/97 and 3495/97, seeking a similar restraint on the construction and commissioning of the sub-station, during the pendency of the writ petition, have been dismissed.

8. Respondents to show their bonafides rely on CM.7395/97, moved by them, in August 1997, for modification and clarification of the order dated 28th May, 1997. It is urged that as soon as they realized that it would not be possible to carry out the construction by strictly keeping a distance of 75 ft. from the boundary wall of the Gurudwara due to the irregular shape and size of the plot, the above application was made. Respondents, Along with the said application, filed the site plans as well as the detailed specifications with regard to the structure and units of the sub-station.

9. Learned senior counsel for the respondents, Mr. Ashwini Kumar, submitted that the decision to construct the sub-station was necessitated on account of frequent power cuts and manifold increase in the load in Saraswati Garden, Mansrover Garden and Ramesh Nagar, the existing system being unable to cope up with the demand. Accordingly, a grid station was required to be set up in the area to augment the system to meet the increased load demand. Indisputably the construction of the sub-station and its energisation is in public interest to alleviate the sufferings of the community, emanating from power cuts. The plot in question had been allotted to the Delhi Vidyut Board by the Delhi Development Authority for establishing the grid station. As regards the conversion of the district park for purposes of sub-station, it is submitted that utilisation of the park for providing a public utility service is permissible under the Master Plan. The sub-station being a public utility park.

10. Learned counsel for the respondents further contended that the Court had permitted the construction to continue, subject to the ultimate decision in the writ petition. He submitted that the respondent Delhi Vidyut Board had taken all the precautions to ensure safety of the sub-station as well as to ensure that there is no danger to the adjoining properties or the lives of those frequenting the Gurudwara. He submitted that respondents have left an alley of 4.5 meters from the Gurudwara, which has been shown in the plan by crossed lines. This has been done to create a buffer. Not only this, the office block has been constructed thereafter. As such, apart from the alley, the office building comes between the Gurudwara and the transformers and other equipment of the sub-station. With a view to adhere to the highest safety standards, respondent Delhi Vidyut Board has changed the design of the sub-station from oil filled switch gear to gas insulated switch gear. He submitted that the Electrical Inspector of the Government of NCT of Delhi has certified the installation as being in order, as per the Indian Electricity Rules.

11. The respondents have set out in CM.7395/97, the factors on account of which it was not physically possible to adhere to the distance of 75 ft., the precautions taken in lieu thereof and the detailed specifications of the building, etc.

It is not necessary, at this stage, to decide the question as to whether the sub-station has been constructed in violation of the Zonal Development Plan or not? This is the subject-matter of the main writ petition. This Court had permitted the construction to be carried out, subject to the submissions of the respondent Delhi Vidyut Board, as record in the order dated 28th May, 1997. The numerous applications moved by the petitioner, as noted earlier, seeking a restraint on the construction have been rejected. Petitioner had appealed to the Division Bench of this Court and the Supreme Court against the rejection but failed. By way of the present application, restraint on construction is being sought in view of the violation by the respondents in complying with the assurances given and recorded in the order dated 28th of May, 1997. The respondents have categorically stated that the basic construction is over and only finishing work is being attended to. The equipment has been installed and the sub-station has been energised. Accordingly, as far as petitioner's prayer for restraint against further construction is concerned, the same has become infructuous.

12. Coming to the application filed by the respondents for modification/clarification of the order dated 28th May, 1997, a perusal of the site plan, as filed, as well as the report of the Local Commissioner, the averments made in the application and the reply of the petitioners, I find that respondents had moved this Court as far back as August 1997 on Realizing that it may not be possible to adhere to the requirement of keeping a uniform distance of 75 ft. from the boundary of the Gurudwara and the sub-station on account of the irregular shape of the plot. The respondents, in these circumstances, left an alley of 4.5 meters, utilising their own land for this purpose so as to create a buffer. The office block, which is a two-storeyed building, has been constructed in between. The control rooms , switch gear rooms, battery rooms, stores, etc. are located in the office block. This is the building where the staff of the respondent is also housed. The main equipment, i.e. the transformers, are located in the yard. The respondents have explained that the maximum available width of the plot is approximately 100 ft. and the minimum width required for installation of the transformers is 62 ft. In these circumstances, a uniform distance of 75 ft. from the boundary wall of the Gurudwara cannot be maintained. The respondents had, therefore, redesigned and changed the building plans so that the distance between the sub-station and the boundary wall of the Gurudwara was the maximum possible.

13. It cannot be disputed that the installation of the sub-station has been undertaken in larger public interest to augment the electricity supply to the residents of the area. It is also pointed that the delay in the construction of the sub-station has already entailed an additional expense of Rs.1.0 crore, causing further burden on the already depleted resources of the respondents. It is submitted that respondents had moved this application as early as August 1997, but its hearing had got delayed on account of numerous applications of the petitioner as also the petitioner challenging the order of the learned Single Judge before the Division Bench and the Supreme Court. As a result, the said application remained pending.

14. On a consideration of the matter I am of the view that respondents have acted bonafide and taken all precautions to ensure safety. There is an alley and a double storey building, where the control panels, switch gears, etc. are located, which would act as the buffer between the Gurudwara and the sub-station. As regards the height of the wall, they have raised the masonary wall up to the permissible height of 2.4 meters. The switch gears and control boards are housed within the two-storeyed building and, thus, would not be visible from outside. It could not have been the intention that the boundary wall is so raised that nothing of the sub-station is visible, including the two storeyed office block. As regards the wiring of the sub-station being underground, the respondents have duly explained that it is the high tension wire which has been kept underground. It was technically not possible to install the transformer circuit breakers underground or to have their wiring underground. The Electrical Inspector of the NCT of Delhi has certified the sub-station as being fit from safety standards. The respondents themselves have taken all the necessary precautions, inter alia, leaving an alley of 4.5 meters, locating the double storeyed building between the boundary wall of the Gurudwara and the transformers, which would act as a buffer, changing the design of the sub-station from oil filled switch gear to gas insulated switch gear and, lastly, by keeping the transformers and the other sensitive equipment at the maximum possible distance. The application moved by the respondents, viz.CM.7395/97, therefore, deserves to be allowed. Accordingly, I allow CM.7395/97, as prayed for.

15. As a result, CM.10056/2000 is dismissed for the reasons recorded and as having become infructuous and CM.7395/97 is allowed, as prayed for.