M.P. ELECTRICITY BOARD vs RAJENDRA MISHRA

THIS appeal is against the orders of the District Forum directing the appellant/M.P.E.B. to dealienate the High Tension (H.T.) line running near the house of the complainant, to some other place, within a period of two months from the date of order; and meanwhile, to pay the complainant compensation from 1.10.1990 @ Rs. 1,000/-p.m. till the said H.T. line is dealienated.

IT is not in dispute that the complainant Rajendra Mishra, had purchased M.I.G. House No. 34 from Housing Board about nine years ago i.e., sometime in the year 1982-83, and is residing with his family. A H.T. line 11,000 voltage runs across above the said house. The complainant alleged that he wants to construct a room, but because of the said H.T. line, he is unable to do so. Furthermore, such a high voltage line is a potential danger. That, he has requested M.P.E.B. authorities to dealienate the line, but there has not been any response; and therefore, he is unable to construct the room over his house and thereby has suffered a loss of Rs. 90,000/-.

The M.P.E.B. in its reply, stated that no record about correspondence on the subject could be traced in the Office records. It is further averred that the H.T. line does not run over the house, but runs by the side of the house. That, the line existed earlier before the construction of the house. Had the house existed from before, it would not have been laid as it exists today. It was further stated, that unless the complainant deposits Rs. 34,485/- as shifting charges, no dealienation is possible. It seems an objection was also raised to the effect that the complainant is not a "Consumer" which appears to have been denied in the rejoinder filed by the complainant on 10.1.1991. It was further stated that high voltage line is a danger to human life, and on such ground and in public interest, the M.P.E.B. has dealienated such lines at other places.

THE complainant examined himself and Shri R.C. Jain, Jr. Engineer, was examined on behalf on the O.P. THE Learned Forum held, that the complainant is a "Consumer"; that the line existed before the Housing Board constructed the house which was purchased by the complainant about nine years ago. According to the Learned Forum, that even though the line existed before the construction, it was incumbent on M.P.E.B. to serve a notice on the Housing Board; and therefore, there is no fault and this is not a fault attributable to the complainant. That, the complainant is at liberty to construct his house as per his requirements. That, there had been instances where the MPEB has removed H.T. lines being a potential danger to the public; that the complainant is entitled to get the line dealienated, without payment of shifting charges as alleged; that the M.P.E.B. had been a stumbling block in the additional construction intended by the complainant, and inspite of notice the Divisional Engineer did not take any action, the complainant has suffered "some loss which is not possible to assess." Hence, the complainant is entitled to get Rs. 1,000/- p.m. from 1.10.1990 till the line is being dealienated. Rs. 200/- have been awarded as costs of litigation. The first question for consideration is whether the respondent/complainant is a ''Consumer'' within the scope and ambit of Section 2(1)(d) of the Consumer Protection Act? The supply of electric or other energy comes within the ambit of ''service''. We are aware of a decision rendered by Haryana State Commission which is reported in Vol. I (1991) C.P.J. Page 115 - Prof. Inderjit Kumar & Others v. Haryana State Electricity Board. It was observed in that case that none of the complainants therein was drawing electric energy from the 11 K.V. High Tension Electric Line feeding the Kalpi Sub-Division, and the sole consumer from that feeder line was the Air Force Missile Station at Ambala. However, the learned Counsel Shri Varma, appearing for the M.P.E.B., conceded that the complainant is a ''Consumer'' of M.P.E.B., though this particular High Tension Line did not directly feed the energy. The existence of a H.T. Line is at hand-shake distance from the house of the complainant. Under Clause (g) "deficiency" has been defined as "any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service" and that has been declared to mean as ''deficiency'' under the Act. According to the allegation in the complaint, the H.T. Line constituted a potential danger, and dispute between a consumer in totality of the circumstances cannot be said to be beyond the jurisdiction of the Forum. The learned Counsel has not pressed his contention, and therefore, we find that the finding of the learned District Forum that the complainant is a ''Consumer'' does not call for any intereferance. In Section 2(c) of Indian Electricity Act, Consumer has been defined and that being an inclusive definition, Shri Varma did not press this point further.

THE impugned orders appear to be largely based on compassionate grounds rather than legal aspects. Just because at some other public places the H.T. Line may have been shifted, it cannot be a rule of thumb, that the H.T. Line passing across the house of the complainant should also be shifted as a matter of course without any costs to be incurred by the complainant. THE learned Forum has not duly considered the important facts namely, that this H.T. Line 11000 K.V.A. was laid in 1965 through Bodabagh Colony to supply energy to numerous consumers of Rewa City. THE M.P. Housing Board later on constructed number of houses in Bodabagh Colony including the House No. MIG 34. Thus, the complainant/respondent purchased this house in 1982-83, and it is admitted that the H.T. Line existed long before the Colony was developed. THE learned Forum has highlighted the circumstance that inspite of the above position namely, that the H.T. Line existed long before the purchase of this house from M.P.H.B. the complainant has a right to construction according to his requirements to which the existence of the line is an impediment. THE point which is missed by the Learned Forum is that the line existed even prior to the construction of the house in the colony by the M.P.H.B., and after about 9 years of the purchase the complainant had raised an objection. Obviously, there is substance in the contention that the complainant who is a purchaser can have no better title, right or interest than the Board from whom he had purchased. If the H.T. Line happens to be at a distance of about 1 ft. from the house, the M.P.E.B. is not responsible for it because the line existed prior to the construction. The learned Counsel for the appellant had referred to certain legal provision which are briefly mentioned hereafter. Section 42 of Electricity (Supply) Act, 1948 (Act No. LIV of 1948) states - "Sec. 42 - Powers to Board for placing wires, poles etc. (1) Notwithstanding anything contained in Sees. 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (IX of 1910), but without prejudice to the requirements of Sec. 7 of that Act where provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall-brackets, stays, apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic communications necessary for the proper co-ordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (XIII of 1885), with regard to telegraph established or maintained by the Government or to be so established or maintained : Provided that where a sanctioned scheme does not make such provision as aforesaid all the provisions of Secs. 12 to 19 of the first- mentioned Act shall apply to the works of the Board."

8.1. Under Indian Electricity Act, 1910 (Act No. IX of 1910) Sec. 12 relates to the provisions as to the opening and breaking up to streets, railways and tramways to lay down or place electric supply-lines, and it also deals with the permission by local authority. Sec. 13 contemplates notice of new works which runs into various Clauses. Sec. 15 relates to laying of electric supply-lines or other works etc. Secs. 18 to 20 of the Indian Electricity Act are also relevant which are mentioned in Sec. 42 supra. 8.2 Part-III of Indian Telegraph Act, 1885 (Act No. 13 of 1885) relates to the topic of power to palace telegraph lines and posts. Secs. 11, 12, 13,15 and 16 are also relevant. Those provisions are specifically mentioned in Sec. 42 of Indian Electricity (Supply) Act, 1984. 8.3 M.P.E.B. has also framed "General conditions for supply of electrical energy and scale of miscellaneous and general charges" which are under Sec. 79(k) of Electricity (Supply) Act, 1948, which enables the Board to make regulations not inconsistent with that Act 8.4 According to the learned Counsel Shri Varma, Condition No. 5 regarding Service Lines provides, that the service line once laid shall not be transferred, interfered with or shifted from one place to another; and if a consumer desires to have the position of the existing service line altered, the Board shall carry out the work and charge the consumer the cost of additional material used and the labour employed plus supervision charges not exceeding 15% on labour. It is said that the line was laid about 25 years ago, and if the complainant desires change, obviously he is required to pay the costs of realisation which has been estimated by M.P.E.B. at Rs. 34,485/-. If every consumer detests the old H.T. Line going over by the side of his house then it will be difficult for the M.P.E.B. to lay any line for supply of energy, and it is public at large which will suffer of energy, and it is public at large which will suffer the consequences. According to the reasoning adopted by the learned District Forum, the M.P.E.B. and M.P.H.B. both are Public Undertakings and if the latter had subsequently built a colony then the former which is also a State Public Undertaking should remove the laid line. We are not impressed by this reasoning. Therefore, we do not agree that the existence of a H.T, Lines which existed since long before the colony was developed by the M.P.H.B. amounts to an infringement of any right of the consumer to construct a room over the house, as has been held by the learned Forum. In the complaint, it is barely alleged that because the complainant is unable to construct a room on the house, he has suffered Rs. 90,000/- loss. We find that the complaint is just in the form of a short letter addressed to the Forum. We do hope that if and when such complaints are received the Forum would direct the complainant to furnish all the particulars necessary for the complaint such as, the name of the opposite party etc., which may be seen from some Model Forms as given in Law of Consumer Protection by Dr. Gurbax Singh (Model Form). No data or basis claiming Rs. 90,000/- as compensation has been given. In the impugned orders while discussing Issue No. 3, the learned Forum observed that it is difficult to assess compensation; and yet it fell into error in awarding a compensation of Rs. 1,000/- p.m. w.e.f. 1.10.1990. The award of compensation appears to be arbitrary.

FOR the aforesaid reasons, this appeal is allowed. The impugned orders dt. 14.4.1991 passed by the learned District FORum, Rewa, are set aside. On principle that costs follow the events the appellant shall get Rs. 200/- as costs in the District FORum and Rs. 200/- as costs of this appeal, which shall be paid by the respondent/complainant to the appellant/O.P. within a period of ten weeks from the date of those orders. In view of recent Ordinance amending Section 14(2) C.P. Act, 1986 the orders are passed, signed and dated by President and another Member. Appeal allowed.