Delhi High Court
Dr. Gyanandra Kumar vs Bses Rajdhani Power Ltd. & Ors. on 30 September, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th September, 2010.
+ W.P.(C) No.13748/2009
%
DR. GYANANDRA KUMAR ..... PETITIONER
Through: Dr. L.S. Chaudhary & Mr. Ajay
Chaudhary, Advocates
Versus
BSES RAJDHANI POWER LTD. & ORS. ..... RESPONDENTS
Through: Ms. Ritu Mishra, Advocate for Ms.
Mansi Gupta, Advocate for R-3/MCD
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner, a resident of a house in street No.14-A, Sadh Nagar,
Palam Colony, New Delhi-110 045, has filed this writ petition averring that
an electricity pole in front of Raj Dairy in the aforesaid street had been
illegally installed; that the said electricity pole obstructs traffic and the
vehicles from turning into the street and causes inconvenience to the
residents of the locality at large. It is further averred that the said electricity
pole is bending towards the road and needs to be lifted vertically. The
complaints made in this regard by the petitioner having not met with any
success, the present petition has been filed seeking directions against the
respondents BSES Rajdhani Power Ltd. (BSES RPL) and the MCD to
remove the said electricity pole and to lift the same vertically.
2. Notice of the petition was issued. The respondent No.3 MCD has
filed a short affidavit stating that the electricity pole is a part of public utility
service and cannot be termed as encroachment on public land under the
Delhi Municipal Corporation Act, 1957. It is further stated that the
respondent no.3 MCD has not given any permission to respondent no.1
BSES RPL or any other person for installing the pole in question.
3. The respondent no.1 BSES RPL has also filed a counter affidavit
stating that street No.14-A is very narrow having a width of only 15 feet;
that the said electricity pole does not cause any disturbance to the traffic; it
feeds the supply of electricity connections of more than 100 consumers on
the said street; that the pole cannot be shifted due to technical reasons as it
maintains the electricity supply to street No.14-A and there is no alternative
space available where it can be located. It is further pleaded that the pole
was erected about 10 years ago and is not falling; that on receipt of
complaints from the petitioner, the pole was got inspected and it was found
that though the same is bending slightly but is firmly rooted in the earth with
concrete and is completely safe and unlikely to fall. It is further pleaded that
there is no space available to provide any support to the said pole. It is also
denied that the pole causes any inconvenience. It is assured that whatever
safety measures are required to be taken have been taken.
4. The counsel for the petitioner states that he does not need to file any
rejoinder. The counsels have been heard.
5. The counsel for the petitioner firstly urged that the respondent no.1
BSES RPL has falsely stated that the pole is 10 years old. It is contended
that till recently the pole did not even have the electricity wires and which
have been attached thereto after the filing of the petition. It is also urged that
the pole has been illegally erected by some persons and the BSES RPL in
collusion with them is protecting the same. Reliance is placed on Sections
298 & 320 of the DMC Act to contend that even such poles cannot be
erected in public streets without the permission of the MCD and which the
respondent no.3 MCD in its counter affidavit has stated has not been given.
6. Insofar as the contention of the petitioner of the pole having been
electrified recently is concerned, in view of the counter affidavit of
respondent no.1 BSES RPL, the said factual controversy cannot be
adjudicated in writ jurisdiction. The petitioner has his remedies before a
fora capable of adjudicating the said factual controversy.
7. Sections 298 & 320 of the DMC Act vest all public streets in MCD
and prohibit erection of any post or other structure therein without the
permission of respondent no.3 MCD. However, a perusal of the
photographs filed by the petitioner show that the colony is not a planned one
and layout plan thereof do not appear to have been sanctioned. It rather
gives an appearance of an urbanized village. The respondent no.3 MCD
inspite of being a party in this petition has not shown any objection to the
said pole. Rather it has contended that the same is a part of public utility
service and cannot be considered an encroachment. Moreover, from the
affidavit of respondent no.1 BSES RPL, it transpires that the pole is assisting
electrification of a large number of houses / residents and the petitioner
being one of them cannot insist upon its removal. If all residents of the
streets / locality feel that the pole should be at some other location, they can
jointly represent for the same. No case thus for directing any of the parties
to remove the electricity pole is made out.
8. The photographs filed do show that the pole is tilting considerably.
However, respondent no.1 BSES RPL has stated on oath that there is no
danger of its falling. The only direction which can be given is that
respondent no.1 BSES RPL should have the said pole inspected from time to
time and to ensure that there is no danger from the same to the property of
anyone and to also consider whether the pole can be got straightened even if
to afford psychological relief to the residents; the pole, to a layman would
pose a danger.
With the aforesaid observations / directions, the petition is disposed
of. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
30th September, 2010
'gsr'
