Letters Patent Appeal No.134 of 2000 (Against the order dated 3/12/1999 passed by learned Single Judge in C.W.J.C. No. 4536 of 1999) CHIEF ENGINEER,SUPPLY,BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, PATNA. --------- Appellant Versus SMT.DURGESH NANDANI & ORS --------- Respondents -------------- For the Appellant : Mr. Vinay Kirti Singh, Adv. For the Respondent : None ------------- P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON’BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan: JJ Responent No. 2-Appellant aggrieved by the order dated 3/12/1999 passed by the learned Single Judge in C.W.J.C. No. 4536 of 1999, allowing the writ application, has preferred this appeal under Clause 10 of the Letters Patent. Short facts giving rise to the present appeal are that the writ petitioner-respondent No. 1 purchased a piece of land measuring 7½ decimal of Survey Plot No. 1323 under Khata No. 757 at Mauza Manpura in the town and district of Patna by a sale deed dated 26/9/1994. Purchase was made for constructing a residential house and according to her, she could not proceed with the construction on account of two electricity Poles fixed and installed in that plot. Writ petitioner requested the offices of the Bihar State Electricity Board, (hereinafter referred to as the “Board”) to remove the poles on the plea that they are coming in the way of construction of the house. The - 2 - Board undertook to remove the poles on her making payment of expenses of the removal and reinstallation of those poles at some other place. A provisional estimate of Rs. 21,046/- was required to be paid for the same by the writ petitioner. Writ petitioner challenged the same in the writ application, which has given rise to the order impugned in the present appeal. On facts, the learned Single Judge found that the two poles were fixed on the land in question without the approval and consent of its owner. Mr. Vinay Kirti Singh, appearing on behalf of the appellant submits that at that time the two poles were fixed, writ petitioner had not purchased the land and the previous owner had not objected to that, in such circumstance, according to Mr. Singh, Rule 82 of the Indian Electricity Rule shall govern the field and the writ petitioner shall be liable to bear the cost of removal and reinstallation. In support of the submission, reliance has been placed on a decision of the Ragasthan High Court in the case of Jaipur Development Authority Vs. The State of Rajasthan and others, AIR 1999 Rajasthan 240 and our attention has been drawn to the following passage from the said judgment. “ It is for the respondent No. 3 to deposit the cost of removal or shifting of the HTL and not the responsibility of the JDA. The JDA cannot be given directions for depositing the cost of removal or shifting of the HTL which is the responsibility of the respondent No. 3 (writ - 3 - petitioners) herself. The directions given by the learned single Judge directing the JDA to deposit the cost of removal or alteration of the HTL from the plot of the respondent No. 3 is contrary to the provisions of Rule 82 of the Rules, 1956 and cannot sustain”. Despite service of notice of respondent No. 1, nobody has chosen to appear on her behalf. We do not find any substance in the submission of Mr. Singh and the decision relied on, has no application at all. Poles in question were fixed on the land without the approval and consent of its owner. Merely the fact that the owner had not objected to its fixation, will not lead to the conclusion that it was with the approval and consent of the owner. The natural corollary of the aforesaid fact is that Board had fixed the two poles in exercise of the power under Section 10 of Indian Telegraph Act. There is no material to indicate that the writ petitioner or her predecessor was paid any damage under Section 10(d) of the Act. The provisons of Section 17 of the Indian Telegraph Act, therefore, have no application and the writ petitioner had no legal obligation to pay the expenses of the removal of the two poles. We are of the opinion that in case the Board fixes and installs electric poles on a private piece of land without express permission or the consent of the land owner, the question of removal of pole will be governed strictly by the provisions of Section 17 of the Indian Telegraph Act and in such cases, the Provision of Rule 82 of the Indian Electricity Rules will have no - 4 - application. In our opinion, the Provision of Rule 82 shall be attracted where the Board fixes and installs electricity poles on a private piece of land on the invitation of the land owner or express permision or consent. Now, reverting to the decision of the Rajasthan High Court, in the case of Jaipur Development Authority (supra), same is clearly distinguishable. In the said case the land owner had made construction of a building without following the due procedure of law and in that background it was held that she cannot claim that it is the responsibility of the Rajasthan State Electricity Board or the Jaipur Development Authority to remove the High Tension Line (HTL) from the Plot. We agree with the reasoning and conclusion of the learned Single Judge. We are of the opinion that the learned single Judge while passing the impugned order had not committed any error calling for interference in the present appeal. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to cost. Patna High Court Dated 5th Sept.2008 NAFR/S.Ali (Chandramauli Kr. Prasad, J.) (Dr. Ravi Ranjan, J.)