IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4731 of 2001 1. KRISHNA SAH ALIAS KRISHNA PRASAD, SON OF LATE DWARIKA PRASAD, RESIDENT OF VILLAGE, POST OFFICE AND POLICE STATION-BIHTA, DISTRICT- PATNA. 2. SUNIL SAH ALIAS SUNIL KUMAR, SON OF LATE DWARIKA PRASAD, RESIDENT OF VILLAGE, POST OFFICE AND POLICE STATION-BIHTA, DISTRICT- PATNA. .......................... PETITIONERS Versus 1. THE STATE OF BIHAR. 2. THE BIHAR STATE ELECTRICITY BOARD, THROUGH ITS CHAIRMAN, VIDYUT BHAWAN, BAILEY ROAD, PATNA. 3. THE DISTRICT MAGISTRATE, PATNA. 4. THE CHIEF ENGINEER, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA. 5. THE SUB-DIVISIONAL MAGISTRATE, DANAPUR, DISTRICT- PATNA. 6. ADDITIONAL ASSISTANT ELECTRICAL ENGINEER, ELECTRIC SUPPLY DIVISION, BIHTA-II, BIHTA, PATNA. 7. NAWAL KANODIA, PROPRIETOR OF M/S BAL MUKUND CAMPER CAST (IRON ROD) FACTORY, BIHTA, DISTRICT- PATNA. ......................... RESPONDENTS ----------- 4. 22.1.2009 Heard Mr. Manoranjan Kumar, counsel for the petitioner and Mr. Vinay Kriti Singh, counsel for the Bihar State Electricity Board as also Mr. N.K.Agrawal, learned Senior counsel for respondent no.7. The prayer of the petitioners seeking a direction from this Court to the respondents to remove the electric pole so installed in the land of the petitioners by way of performance of duty is wholly misconceived. The Electricity Board has/had such power of installing electric pole or any 2 apparatus even on the private land in terms of the provisions made under sections 12 to 16, 18 and 19 of the Indian Electricity Act, 1910 read with section 42 of the Electricity Supply Act, 1948. The provisions in fact had been made in 1910 Act (since repealed and replaced by the Electricity Act, 2003) that the provisions of sections 10 to 16 of the Indian Telegraph Act as with regard to user of the land will also be applicable and available to the Board. As a matter of fact this aspect of the matter has already been decided by this Court in the case of Arvind Kumar vs. the State of Bihar & ors., reported in 2005(1) PLJR 487 and therefore, needs no further illustration at least on the proposition of law that even a private land can be used for erection/ setting up of an electric pole. Counsel for the petitioners, however, tried to impress upon this Court that such exercise of power by the authorities of the Board was malafide and in this context has drawn my attention to the statements made in paragraph 10 of the writ application. Paragraph 10 reads as follows: 3 “That it may be stated that the land in question was neither acquired nor any compensation has been paid either to the petitioners or to their vendor. The local Officers of the Board in collusion with respondent no.7 instead of erecting and installing the electric poles in the adjoining land of the latter, illegally and malafidely erected the poles in the present land without the consent of the owners/ predecessor in interest. Needless to say that the transmission of the electric line is for the sole benefit of respondent no.7 while the permanent imminent injury has been caused to the petitioners. The petitioners cannot freely enjoy their land. Even the construction of shops in the land have been stopped by the authorities in view of the risk involved but nothing has been done by the authorities for removal of the poles. The orders have fallen on the deaf ears of the respondents. Respondent no.3 has also not performed his duties under section 12 and other provisions of the Act. The petitioners are suffering irreparable injury and they are entitled to be compensated for the wrongful suffering.” 4 So far the first part of the grievance as with regard to payment of compensation is concerned, the remedy for the petitioners lies under the provisions of Telegraph Act which lays down the manner of compensation and its determination as well as adjudication upto the District Judge. That being so, the first part of the grievance of non-payment of compensation cannot be a ground for issuance of a direction to the Board to remove the pole in question so set up in the land. As with regard to the allegation of malafide, in the aforementioned paragraph this Court must note such submission only for its being rejected. The allegations of malafide to say the least are absolutely vague. Who were the „local officers‟ who had acted in collusion with respondent no.7 has not been specified and again it has not been mentioned as to what could have been the intention of the Officers of the Board in placing a pole in the land of the petitioners. On the other hand, there has been a counter affidavit by the officials of the 5 Board wherein it has been mentioned that the petitioners are actually having some grudge against respondent no.7, inasmuch as the petitioners earlier were themselves the Director of M/s Balmukund Concast for whose benefit an electrical connection was given by the Board by placing an electric pole. It thus becomes clear that in the garb of this writ application some private right, of the petitioner out of vengeance against the Respondent no. 7 has been sought to be raised for its adjudication. That apart the counter affidavit of the Board in paragraph 5 has clarified that whereas the poles in question for laying down 33 KVA line was erected and installed way back in the year 1988, the petitioners came to purchase this land subsequently. Paragraphs 6 and 7 of the counter affidavit would further go to show that the pole in question has not been placed in any portion of the land of the petitioners rather the same has been existing for last 19 years on the fringe of his land i.e. in the boundary of the land of the petitioners. The detailed facts mentioned in this regard in the 6 counter affidavit and its not being at all controverted by the petitioners by filing any rejoinder affidavit would leave nothing for this Court to now decide, especially when the law itself is against them and in favour of the Board. That being so, this Court keeping in view of the aforesaid stand taken in counter affidavits filed by the Board as also the respondent no.7, which also have not been controverted by the petitioners, will have no option but to dismiss this writ application. It is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/