Orissa High Court
The Executive Engineer ... vs Smt. Soubhagini Patra on 14 March, 2023
AFR
THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21035 of 2021
In the matter of an application under Articles-226 & 227 of the
Constitution of India ;
-----------
The Executive Engineer (Electrical), TPCODL
Bhubaneswar Electrical Division, Bhubaneswar
At/P.O.- Rasulgarh, District- Khurda & another ....... Petitioners
-Versus -
Smt. Soubhagini Patra,
W/o. Late Prakash Ch. Chhotray Patra,
Plot No.1241, At- Jagannath Nagar,
Road No.13, GGP Colony, Bhubaneswar
District- Khurda & another ....... Opp. Parties
___________________________________________________________
For the Petitioners : Mr. S.C. Dash, Advocate
For the Opp. Parties: Mr. Santanu Kumar Sarangi, Senior Advocate
Mr. A.K. Nayak, Advocate
___________________________________________________________
CORAM:
THE HONOURABLE SHRI JUSTICE S. TALAPATRA
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
14th March, 2023
S. Talapatra, J. By means of this writ petition, the petitioners
representing the Tata Power Central Odisha Distribution Limited
(TPCODL) have challenged the order dated 07.04.2021 delivered in the
complaint case being GRF, BBSR, CC No.165/2021, Annexure-3 to the
writ petition.
2. By the said order dated 07.04.2021, the GRF directed the
petitioners to take all necessary steps to remove the distribution
transformers having capacity of 500 KVA and 200 KVA from the
private plots of the complainant to a convenient place, but without
encroaching upon the private plot of the complainant (the opposite party
No.1 herein).
3. It has been observed in the said order that, those
transformers were installed on the private land of the opposite party
No.1 violating the relevant regulation as framed by the Odisha
Electricity Regulatory Commission (OERC). Hence, the petitioners
have either to shift the transformers to any other place within fifteen
days or the petitioners have to pay a sum of Rs.3,000/- (Rupees three
thousand) per day on demand, for each day of delay in shifting the said
transformers from the complainant's private plot. In addition to that, the
petitioners will be held responsible for loss of life or property that may
occur due to the delay, because of unsafe mode of installation in the
close proximity of the opposite party No.1's premises.
4. At the time of issuance of the notice, by the order dated
28.07.2021, it had been ordered that the petitioners would deposit a sum
of Rs.20,000/- (Rupees twenty thousand) towards litigation expenses,
within a period of two weeks. It has been further observed that subject
to compliance of the above direction, the impugned order shall remain
stayed till the next date.
5. It appears from the Registry's note dated 28.07.2021, the
said amount of Rs.20,000/- as the litigation cost has been paid by the
petitioners by a Demand Draft, a copy of which was filed in this case.
6. Mr. S.C. Dash, learned counsel appearing for the
petitioners has submitted that the order of the GRF is grossly arbitrary
in as much as Section-42(5) of the Electricity Act does not authorize it
to pass the direction for removing the transformers in question from the
land of the opposite party No.1 to the other location. Mr. Dash, learned
counsel has quite emphatically submitted that those transformers were
installed in the year 2010 and one of which was upgraded from 250
KVA to 500 KVA through the OPTCL under Biju Gramya Jyoti Yojana
(BGJY) Scheme in the year 2018, to cater the load growth.
7. Shifting of the said distribution transformers is not feasible,
as there is no alternative space available due to the less width of the
Road No.13 adjoining to the present location. At the time of installation
of those transformers, the opposite party No.1 (the complainant) did not
raise any objection.
8. Mr. Dash, learned counsel has taken us to the reply filed by
the petitioners before the GRF, which is Annexure-2 to the writ petition.
Para-3 of the said reply, filed before the GRF reads as follows:
"......After the field verification, it is found that there is no
space in Road No.13 of Jagannath Nagar to shift the entire
electrical installation and there is no complaint made by the
complainant while installation of DTR in 2010 as well as in
the up-gradation and installation of 100 KVA DTR in the
year 2018 to the year 2021 March, as reported by SDO
(Eng.) Rasulgarh Sub-Division, BBSR."
9. Mr. Dash, learned counsel has submitted that the GRF has
been constituted under Section-42 (5) of the Electricity Act, 2003. It
lacks the power and jurisdiction to entertain the dispute from the general
public not relating to the grievances of the electrical consumers. The
GRF can exercise the power to adjudicate the dispute between the
licensee and the consumer relating to the defects and the deficiencies in
rendering the services to the electrical consumers by the licensee.
10. It has been further submitted by Mr. Dash, learned counsel
that the OERC, by its Circular No. GRF-1/2004 dated 19.10.2004,
Annexure-4 to the writ petition, has laid down the procedure for
functioning of the GRF and conducting the proceeding of GRFs.
11. Regulation-2.3 provides that subject to the provisions of
the Electricity Act, 2003, Rules, Regulations, Notifications made
thereunder, the Forum shall generally dispose of the complaints relating
to the defects or deficiencies in the electricity services as defined in the
relevant Regulations. Below the Clause-2.3 of the said Notification
dated 19.10.2004, Annexure-4 to the writ petition, some examples have
been cited. No mention has been made for shifting of the transformers.
If the jurisdiction is not conferred by the law, no forum or the Court can
wield jurisdiction.
12. According to the Works of the Licensee Rules, 2006, the
grievance can only be redressed by the District Magistrate in view of the
second proviso to sub-clause-(b) of Clause-1 under Rule-3 of the Works
of Licensee Rules, 2006 and hence, the impugned order as passed by the
GRF is illegal, as the GRF does not hold any authority or jurisdiction to
pass such order.
13. According to Mr. Dash, learned counsel, Schedule-III of
the Odisha Electricity Regulatory Commission (Licensees' Standards of
Performance) Regulations, 2004 lays down the amount to be paid as
compensation only if it is proved that the licensee had failed to maintain
the standard of performance specified in Schedule-I. Without any regard
to the said provisions, it has been directed that unless the transformers
are shifted within the stipulated date, the opposite party No.1 will be
entitled to charge Rs.3,000/- for each day's delay.
14. The opposite party No.1 has filed the counter affidavit. It
has been asserted in the counter affidavit that there is no dispute as
regards the land on which the transformers were installed belongs to the
opposite party No.1. As the opposite party No.1 is old and lives alone,
most of the time, she stays in her daughter's house in the Mancheswar
area. The opposite party No.1 is also suffering from the spinal problem.
It has been categorically asserted by the opposite party No.1 in para-9 of
the said counter affidavit that prior to installation of the transformers, no
permission or consent was taken by the Electricity Department.
Therefore, the opposite party No.1 did not have constructive knowledge
regarding the activity of the petitioners viz. encroachment of the land
for installation of the transformers. That is the reason why the opposite
party No.1 could not raise any objection at the time when the
transformers were being installed.
15. It has been also stated that the said transformers were
installed for providing electricity to 22 duplex houses in the GGP Purab
Housing Complex at Rasulgarh, Bhubaneswar.
16. In para-12(a), which has been incorporated by way of
amendment, it has been asserted as under:
"The electricity transformer of 100 KVA was installed in the
said duplex housing complex and the opposite party No.1 had
also taken electricity connection from the said feeder. Another
500 KVA transformer was also installed. Later on taking
advantage of the opposite party No.1's absence, both the
transformers had been shifted to her land after 2010 without
her knowledge or permission."
17. Mr. Santanu Kumar Sarangi, learned Senior Counsel
appearing for the opposite party No.1 has submitted that the solitary
issue that has fallen for consideration of this Court hinges on
unauthorized installation of two transformers on the land of the opposite
party No.1 during her absence. The opposite party No.1 had made a
representation to the authorities, but no action has been taken.
18. It has been admitted by Mr. Sarangi, learned Senior
Counsel that the contention of the petitioners is accurate that in the year
2010, the initial installation [of the transformers] was made. Later on, it
had been up-graded to 500 KV under OPTCL, BGJY Scheme in 2018.
It has been also stated by Mr. Sarangi, learned Senior Counsel that in
the year 2018, another 10 KV DTR was installed. The purpose of such
installation was to supply electricity to the duplex project.
19. Mr. Sarangi, learned Senior Counsel has contended further
that the petitioners have misconstrued Rule-3 (1) of the Works of the
Licensee Rule, 2006 to raise the above plea conveniently. The
petitioners' contention that the issue of shifting of the transformers will
be covered under Rule-3(1), sub-rule-(b) of the Works of the Licensee
Rule, 2006 is misconceived.
20. According to Mr. Sarangi, learned Senior Counsel, what
has been contended by the petitioners that the grievance of the opposite
party No.1 is covered under Rule-3, Clause-1 is unsustainable. It has
been emphasized that there is no dispute in respect of the proprietorship
of the land. Even the petitioners have clearly admitted that there had
been no prior permission /consent from the land owner for installation
of those transformers.
21. Rule-3(1)(a) of the Works of the Licensees Rule, 2006
provides that any of the acts such as laying down or placing any electric
supply line over or under any land, the prior consent or permission of
the owner or occupier of any building or land is sine qua non for the
licensee and in the event, any objection is raised by the owner or the
occupier of the land or building, the licensee shall obtain permission in
writing from the District Magistrate for carrying out such work.
22. Regarding the jurisdiction of the GRF, it has been
contended by Mr. Sarangi, learned Senior Counsel that the opposite
party No.1 is a complainant within the meaning of Clause-15 of
Section-2 of the Electricity Act, 2003. As the consumer is aggrieved by
the installation of the transformers and inaction of the distribution
licensee in shifting of those illegally installed transformers, the Forum
had the jurisdiction under Section-42(5) of the Electricity Act, 2003.
23. The Circular No.GRF-1/2004, dated 19.10.2004 merely
gives some illustrations where the GRF can exercise its jurisdiction, but
that cannot be said to have provided the exhaustive list of areas of the
disputes.
24. Mr. Sarangi, learned Senior Counsel at the fag-end of his
submission, has referred to Section-53 of the Electricity Act which
provides that the authorities may in consultation with the State
Government, specify suitable measures for protecting the public
including the persons engaged in the generation, transmission or
distribution or trading from danger arising from the generation,
transmission or distribution or trading of electricity or use of electricity
supply or installation, maintenance or use of the electric line and
electrical plant.
25. According to Mr. Sarangi, learned Senior Counsel, the
action of the petitioners is wholly illegal and that action is adrift from
the safety regulations as noted above and also under Chapter-IV of
Regulation-88 of the CEA (Measures Relating to the Safety and Electric
Supply) Regulations. It has been pointed out by Mr. Sarangi, learned
Senior Counsel that the petitioners have approached this Court without
complying with the order of the GRF to avoid penalty as prescribed
under Section-142 of the Electricity Act, 2003 for non-compliance of
the order and hence, this writ petition should be dismissed without
further consideration.
26. In response, Mr. Dash, learned counsel has referred to the
order dated 20.02.2009 issued by the Government of Odisha in exercise
of the powers conferred by Section-164 of the Electricity Act, 2003. In
the said order, vide Clause-8(3), it has been provided that the District
Magistrate receiving an application under sub-section-(2) may in his
discretion reject the same or make an order, absolutely or subject to the
conditions for the removal of the electricity line or plants to any other
part or property or to the higher or lower level of its form ; and the order
shall be final.
27. In Clause-10 of the said direction, it has been further
provided that every electric line or electrical plant, placed before
passing of the said order, over, along, across, in or upon any property,
for the purposes of a power system established or maintained by the
State Government/State Electricity Board, shall be deemed to have been
placed in exercise of the powers conferred by, and after observance of
all the requirement of that Order.
28. As sequel, we may read Section-164 of the Electricity Act,
2003. The said Section provides that the appropriate Government may,
by the order in writing, for placing of electrical lines or electrical plant
for the transmission of the electricity or for the purpose of telephonic or
telegraphic communications, necessary for the proper co-ordination of
works, may confer upon any public officer, licensee or any other person
engaged in the business of supplying electricity under this Act, subject
to such conditions and restrictions, if any, as the Appropriate
Government may think fit to impose and subject to the provisions of the
Indian Telegraph Act, 1885, any of the powers which the telegraph
authority possesses under that Act with respect to the placing of the
telegraph lines and posts for the purposes of a telegraph established or
maintained by the Government or to be so established or maintained.
29. In Manoranjan Sa and others vs. State of Odisha and
others: 2019 (I) OLR (NOC) 1095: AIR 2019 Orissa 85, this Court
had observed that the Indian Telegraph Act, 1885 has been made
applicable for the purposes of placing electric lines and electric plants
for transportation of the electricity for the public interest. But the mode
of the implementation is to be followed by the mandate of Section-164
of the Electricity Act, 2003 read with Sections-10 & 16 of the Indian
Telegraph Act, 1885.
30. Sections- 10 & 16 of the Indian Telegraph Act provide as
follows:
"10. Power for telegraph authority to place and maintain
telegraph lines and posts - The telegraph authority may, from
time to time, place and maintain a telegraph line under, over,
along, or across, and posts in or upon any immovable property:
Provided that -
a. the telegraph authority shall not exercise the powers
conferred by this section except for the purposes of a
telegraph established or maintained by the [Central
Government], or to be so established or maintained;
b. the [Central Government] shall not acquire any right
other than that of user only in the property under, over,
along, across in or upon which the telegraph authority
places any telegraph line or post; and
c. except as hereinafter provided, the telegraph authority
shall not exercise those powers in respect of any
property vested in or under the control or management
of any local authority, without the permission of that
authority ; and
d. in exercise of the powers conferred by this section, the
telegraph authority shall do as little damage as
possible, and, when it has exercised those powers in
respect of any property other than that referred to in
clause (c), shall pay full compensation to all persons
interested for any damage sustained by them by reason
of the exercise of those powers.
16. Exercise of powers conferred by Section 10, and
disputes as to compensation, in case of property other than
that of a local authority - (1) If the exercise of the powers
mentioned in Section 10 in respect of property referred to
in clause (d) of that section is resisted or obstructed, the
District Magistrate may, in his discretion, order that the
telegraph authority shall be permitted to exercise them. (2)
If, after the making of an order under sub section (1), any
person resists the exercise of those powers, or, having
control over the property, does not give all facilities for
this being exercised, he shall be deemed to have committed
an offence under section 188 of the Indian Penal Code
(45of 1860). (3) If any dispute arises concerning the
sufficiency of the compensation to be paid under section
10, clause (d), it shall, on application for that purpose by
either of the disputing parties to the District Judge within
whose jurisdiction the property is situate, be determined by
him. (4) If any dispute arises as to the persons entitled to
receive compensation, or as to the proportions in which
the persons interested are entitled to share in it, the
telegraph authority may pay into the Court of the District
Judge such amount as he deems sufficient or, where all the
disputing parties have in writing admitted the amount
tendered to be sufficient or the amount has been
determined under sub-section (3), that amount ; and the
District Judge, after giving notice to the parties and
hearing such of them as desire to be heard, shall determine
the persons entitled to receive the compensation or, as the
case may be, the proportions in which the persons
interested are entitled to share in it. (5) Every
determination of a dispute by a District Judge under sub-
section (3) or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect
the right of any person to recover by suit the whole or any
part of any compensation paid by the telegraph authority,
from the person who has received the same."
31. Section-16 of the Indian Telegraph Act, 1885 lays down
the powers of the District Magistrates for taking action in respect of the
disputes as mentioned under Sections-10 and 16 of the Indian Telegraph
Act, 1885.
32. From a comparative study of the Indian Telegraph Act,
1885 and the order dated 20.07.2009, it is to be noted that Section-16 of
the Indian Telegraph Act has been recalibrated by the State Government
by exercise of its authority as provided by Section 161 of the Indian
Electricity Act, 2003. Clause-7 of the Order dated 20.02.2009, as
referred above, reads as follows:
"7. Exercise of powers conferred by Section 1, and
disputes as to compensation, in case of property other than
that of a Local Authority-
(1) If the exercise of the powers mentioned in section 1 in
respect of property referred to in clause (d) of that
section is resisted or obstructed, the District
Magistrate may, in his discretion, order that the
electricity Authority shall be permitted to exercise
them.
(2) If, after the making of an order under sub-section (1),
any person resists the exercise of those powers, or
having control over the property, does not give all
facilities for this being exercised, he shall be deemed
to have committed an offence under section 188 of the
Indian Penal Code (45 of 1860).
(3) If any dispute arises concerning the sufficiency of the
compensation to be paid under section 1, clause (d), it
shall, on application for that purpose by either of the
disputing parties to the District Judge within whose
jurisdiction the property is situated, be determined by
him.
(4) If any dispute arises as to the persons entitled to
receive compensation, or as to the proportions in
which the persons interested are entitled to share in it,
the Electricity Authority may pay into the Court of the
District Judge such amount as he deems sufficient or,
where all the disputing parties have in writing
admitted the amount tendered to be sufficient or the
amount has been determined under sub-section (3),
that amount and the District Judge, after giving notice
to the parties and hearing such of them as desire to be
heard, shall determine the persons entitled to receive
the compensation or, as the case may be, the
proportions in which the persons interested are
entitled to share in it.
(5) Every determination of a dispute by a District Judge
under sub-section (3) or sub-section (4) shall be final:
Provided that nothing in this sub-section shall affect
the right of any person to recover by suit the whole or
any part of any compensation paid by the Electricity
Authority, from the person who has received the
same."
33. It is apparent that the mechanism that has been adopted by
Clause-7 of the said order dated 20.02.2009 is in respect of the disputes
those can be taken care of, by the District Judge and, if there is a
requirement of payment of the compensation, that will be proposed and
determined by the District Magistrate. If any individual or the party is
aggrieved by the order of the District Magistrate, he may approach the
District Judge within whose jurisdiction or limit the property is situated,
to determine the sufficiency of the compensation following the
procedure as laid down under the said clause.
34. Mr. Dash, learned counsel has also relied on a decision of
this Court in Kulamani Kar vs. The Executive Engineer (Electrical),
Kuakhia Electrical Division, Kuakhia, District- Jajpur & others
[the common judgment dated 02.11.2022 delivered in W.P.(C)
No.11264 of 2022 and W.P.(C) No.14517 of 2022] whereby, it has
been observed as follows:
"7. Mr. Dash, learned counsel appearing for the petitioner in
W.P.(C) No.14517 of 2022 has contended that the order of the
GRF is without jurisdiction in as much as The Works of Licensee
Rules, 2006 which came into force with effect from 18.04.2006 has
specifically created the authority who can direct shifting of the
line or in the event of any difficulty faced by the person over
whose land or the property, the line is drawn up and attend to
such issues. Mr. Dash, learned counsel has referred to Rule-3 of
the said Rules, which reads as follows:
"3. Licensee to carry out works.- (1) A licensee may -
(a) carry out works, lay down or place any electric
supply line or other works in, through, or against, any
building, or on, over or under any land whereon, whereover
or whereunder any electric supply-line or works has not
already been lawfully laid down or placed by such licensee,
with the prior consent of the owner or occupier of any
building or land;
(b) fix any support of overhead line or any stay or strut
required for the purpose of securing in position any support
of any overhead line on any building or land or having been
so fixed, may alter such support:
Provided that in case where the owner or occupier of the
building or land raises objections in respect of works to be
carried out under this rule, the licensee shall obtain
permission in writing from the District Magistrate or the
Commissioner of Police or any other officer authorized by
the State Government in this behalf, for carrying out the
works:
Provided further that if at any time, the owner or
occupier of any building or land on which any works have
been carried out or any support of an overhead line, stay
or strut has been fixed shows sufficient cause, the District
Magistrate or the Commissioner of Police, or the officer
authorized may be ordered in writing direct for any such
works, support, stay or strut to be removed or altered.
(2) When making an order under sub-rule(1), the District
Magistrate or the Commissioner of Police or the officer so
authorized, as the case may be, shall fix, after considering
the representations of the concerned persons, if any, 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.
(3) Every order made by a District Magistrate or a
Commissioner of Police or an authorized officer under sub-
rule(1) shall be subject to revision by the Appropriate
Commission.
(4) Nothing contained in this rule shall affect the powers
conferred upon any licensee under section 164 of the Act."
8. It is apparent from the said rule that, if at any time, the
owner or any occupier of any building or land on which any works
have been carried out or any support of an overhead line, stay or
strut has been fixed, shows sufficient cause, the District
Magistrate or the Commissioner of Police, or the officer so
authorized may by order in writing direct for any such works,
support, stay or strut to be removed or altered.
9. Sub-Rule(2) also provides authority to the District
Magistrate or the Commissioner of Police or the other officers,
who are authorized, to determine the amount of compensation or
of annual rent or both, which should in their opinion be paid by
the licensee to the owner or the occupier." [Emphasis added]
35. Having appreciated the rival contentions as advanced by
the counsel for the parties, we are of the considered view that the GRF
did not have the requisite jurisdiction to entertain the dispute relating to
shifting of the transformers in as much as by rules/practice directions as
framed under Section- 164 of the Indian Electricity Act, it has been
clearly provided under [Rule-3 of the Works of Licensee Rules, 2006]
that at any time, the owner or occupier of any building or land from
which any works have been carried out or any support of an overhead
line has been fixed, shows sufficient cause, the District Magistrate or
the Commissioner of Police or the Officers so authorized may give
order in writing directing any such works support, stay or struck to be
removed or altered. This provision has been supplemented by the
provisions of the order dated 20.02.2019, which are substantially pari
materia to the provisions of Rule-3 of the Works of Licensee Rule,
2006.
36. Therefore, either the District Magistrate or the
Commissioner of Police, if he is so authorized to exercise such power is
the authority which will deal with such dispute. As such, the order dated
07.04.2021, Annexure-3 to the writ petition, is interfered with and set-
aside as being issued without any jurisdiction. But the opposite party
No.1 is given liberty to approach the authority, i.e. the District
Magistrate of the district where the opposite party No.1's land is
situated for removing the transformers which have been installed
without her prior permission and for granting compensation, if any.
37. Such petition shall be filed within a period of fifteen days
from the date of receiving a copy of this order, to the District
Magistrate, if the opposite party No.1 is so inclined.
38. We direct the District Magistrate to decide the issue in the
dispute, if he is approached by the opposite party No.1, and pass the
final order within, a period of six weeks from the date of receipt of the
petition from the opposite party No.1, in accordance with law.
39. In terms of the above, this writ petition stands allowed,
subject to the liberty granted to the opposite party No.1.
40. There shall be no order as to costs.
(S. Talapatra)
Judge
Savitri Ratho, J. I agree
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 14th March, 2023/Subhasis Mohanty, P.A.
