Debaprasad Das vs West Bengal State Electricity Distribution Company Limited And Others

Ajoy Kumar Mukherjee, J

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 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.

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 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 .

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.

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 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.

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 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.

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.

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.

While this controversy going on between the parties the divisional Engineer , (Tech-1) WBSEDCL vide his letter dated 23.03.2021 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.

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.

FMA 102 of 2017 is accordingly disposed of.

There will be no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.