CWP No.3939 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 3939 of 2007 Date of Decision: 14 - 12 - 2009 Harinder Pal Singh ....Petitioner v. State of Haryana and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.R.S.Mamli, Advocate for the petitioner. Mr.Sunil Nehra, Sr. DAG, Haryana for respondent No.1. Mr.Mohnish Sharma, Advocate for Mr.Narender Hooda, Advocate for respondents No.2 to 4. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present writ petition has been preferred by owner of a Mango Orchard. He has sought quashing of impugned order dated 21.12.2006, Annexure P9, whereby Superintending Engineer, Trans System Circle, HVPNL, Panchkula has rejected the representation of the petitioner filed in pursuance of order dated 20.7.2006 passed in Civil Writ Petition No.10876 of 2006. A perusal of Annexure P9 reveal that petitioner had made a CWP No.3939 of 2007 [2] grievance that Tower Nos.57 and 58 upon which 66 KVD/C Hydle-Yamuna Nagar line is erected is passing through the orchard and the same ought to be shifted. It is also not disputed that this extra high voltage line had been erected and stand energized/commissioned for the last more than 17 years. The stand of the Electricity Department is that Tower Nos.57 and 58 were specially designed to achieve proper ground clearances as per Indian Electricity Act. It state that number of trees have been allowed to grow beneath this line. Whenever these trees start touching the line, their trimming/cutting become essential for keeping the line running and staff of Haryana Vidyut Prasaran Nigam Limited had carried the exercise to prune and cut the trees after giving due notice to the petitioner. S.E. Trans System Circle, HVPNL, Panchkula on 21.12.2006 in Annexure P9 concluded as under:- “11. As already elaborated above the height of the towers has been kept more suitable for 132 KV whereas line in question is only 66 KV. There is no danger of electrocution of any human being as proper ground clearance required for 66 KV line is being maintained. Keeping in view the above, it is concluded that no damage is being caused to the petitioner by running D/C 66 KV Hydle-Yamuna Nagar line between Tower No.57 & 58 passing over his orchards. The claim lodged by the petitioner is not justified and hence not payable by the HVPNL.” The stand of the petitioner in the writ petition is that his garden is very old and even in the Kisan Book for the year 1967-68, the entries of the orchard have been mentioned. It is further mentioned in the writ CWP No.3939 of 2007 [3] petition that in the year 1982-83 some more trees were planted and the orchard was extended by the petitioner. Petitioner claim that trees are more than 21 years of age. Petitioner further state that in the year 1988, respondent-Department has brought a high voltage line from Bhurkalan to Yamuna Nagar. Counsel for the petitioner has referred to Rule 80 of the Indian Electricity Rules, 1956 (hereinafter to be referred as, `1956 Rules') and state that Department is not maintaining the line as per rules and damage is caused to the property of the petitioner. Rule 80 of 1956 Rules read as under:- “80. Clearances from buildings of high and extra-high voltage lines.- (1) Where a high or extra-high voltage overhead line passes above or adjacent to any building or part of a building it shall have on the basis of maximum sag a vertical clearance above the highest part of the building immediately under such line, of not less than - (a) for high voltage lines upto and including 3.7 metres 33,000 volts (b) for extra-high voltage lines 3.7 metres plus 0.30 metre for every additional 33,000 volts or part thereof. (2) The horizontal clearance between the nearest conductor and any part of such building shall, on the basis of maximum deflection due to wind pressure, be not less than- CWP No.3939 of 2007 [4] (a) for high voltage lines upto and 1.2 metres including 11,000 volts (b) for high voltage lines above,11,000 volts and up to and including 33,000 2.0 metres volts (c) for extra-high voltage lines 2.0 metres plus 0.3 metre for every additional 33,000 volts for part thereof. [Explanation.- For the purpose of this rule expression “building” shall be deemed to include any structure, whether permanent or temporary.] [Various clearances such as vertical, horizontal and ground clearance shall be considered as per the sketch in Annexure XVI.” Counsel has further stated that as per Rule 85 of 1956 Rules, maximum interval between supports should be as per Rule 76 and in case of overhead line carrying low or medium voltage conductors, when erected in, over, along or across any street, the interval can not without the consent in writing of the Inspector, exceed 65 metres. In sum and substance, the case of the petitioner is that by taking 66 KVA line from the orchard, the respondent-Department has caused loss to his property and, therefore, he should be compensated. Counsel further state that in between some pole should be erected. Counsel has also pressed Section 19 of the Electricity Act, 1910 to say that he is entitled to CWP No.3939 of 2007 [5] compensation for damages. The respondent-Department has filed the reply. They have stated that the ground distance required from lowest conductor is 5.5 metres which has been strictly adhered to and no damage had been caused to the petitioner by running D/C 66 KV Hydle Yamuna Nagar line between Tower No.57 and 58 passing over the orchards of the petitioner. Mr.R.P.S.Chauhan, Executive Engineer (TS), Haryana Vidyut Prasaran Nigam Ltd., Jorian Power House, Yamuna Nagar has filed the additional affidavit. In para 3 of the affidavit, he has stated that according to Indian Standard 5613 (Part 2/Sec 1) – 1985 the spans lengths were mentioned in Clause 6.4.1 according to which the span range (length) for 132 KV Tower for double circuit shall be between 305-380 Meters. Counsel for the petitioner to rebut this has stated that as per the affidavit, for 66 KV line, the span range is between 204-305 Meters for one circuit and 240-320 Meters for two circuits. However, in the affidavit, details had been given as to what should be the distance between tower to tower. This Court has got no specialisation and expertise to determine the damage which can be caused to the trees of the petitioner or as to how the overhead safety can be ensured. For this purpose in the Act and the Electricity Rules, a special authority called Electrical Inspector/Chief Electrical Inspector has been created. Rule 2(w) of 1956 Rules read as under:- “(w) “Inspector” means an Electrical Inspector appointed under section 36;”. `Inspector' means an Electrical Inspector appointed under Section 36. After 1956 Rules, a new Act has been enacted called `The Electricity Act, 2003'. CWP No.3939 of 2007 [6] The definition of Section 2(21) of the Electricity Act, 2003 (hereinafter to be referred as, `2003 Act') define the “Electrical Inspector”. Same read as under:- “2(21)“Electrical Inspector” means a person appointed as such by the Appropriate Government under sub-section (1) of section 162 and also includes Chief Electrical Inspector;” Section 162 of 2003 Act read as under:- “162. Appointment of Chief Electrical Inspector and Electrical Inspector.- (1) The Appropriate Government may, by notification, appoint duly qualified persons to be Chief Electrical Inspector or Electrical Inspectors and every such Inspector so appointed shall exercise the powers and perform the functions of a Chief Electrical Inspector or an Electrical Inspector under this Act and exercise such other powers and perform such other functions as may be prescribed within such areas or in respect of such class of works and electric installations and subject to such restrictions as the Appropriate Government may direct. (2) In the absence of express provisions to the contrary in this Act, or any rule made thereunder, an appeal shall lie from the decision of a Chief Electrical Inspector or an Electrical Inspector to the Appropriate Government or if the Appropriate Government, by general or special order so directs, to an Appropriate Commission.” Therefore, the appropriate Government is duty bound to appoint Chief Electrical Inspector/Electrical Inspector. Counsel for the parties are not in a CWP No.3939 of 2007 [7] position to deny that there is Chief Electrical Inspector/Electrical Inspector in the State of Haryana. Section 68 of 2003 Act contain provisions relating to overhead lines. Section 68(5) of 2003 Act read as under:- “(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.” A perusal of Section 68(5) reveal that when any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any work, then an Executive Magistrate or authority specified by the Government may, on the application of the licensee, cause the tree, structure or object to be removed. Rule 82 of 1956 Rules provide that in case overhead lines are to be shifted, then the person whose property cause obstruction can approach the authorities for this purpose. In case of any dispute regarding the amount to be incurred or if the estimate is on higher side, the same can CWP No.3939 of 2007 [8] be resolved by the Electrical Inspector. Rule 91(2) of 1956 Rules vests powers in an Inspector to give notice in writing requiring the owner of any such overhead line whereever it may be erected to protect it in the manner specified in sub-rule (1) of Rule 91. A complete reading of Rule 63 make it apparent that if high or extra-high voltage electric supply lines are to be erected, approval in writing from the Inspector is required. Rule 52 of 1956 Rules read as under:- “52. Appeal to Inspector in regard to defects.-(1) If any applicant for a supply or a consumer is dissatisfied with the action of the supplier in declining to commence, to continue or to recommence the supply of energy to his premises on the grounds that the installation is defective or is likely to constitute danger, he may appeal to the Inspector to test the installation and the suppliers shall not, if the Inspector or under his orders, any other officer appointed to assist the Inspector, is satisfied that the installation is free from the defect or danger complained of, be entitled to refuse supply to the consumer on the grounds aforesaid, and shall, within twenty-four hours after the receipt of such intimation from the Inspector, commence, continue or recommence the supply of energy. (2) Any test for which application has been made under the provision of sub-rule (1) shall be carried out within seven days after the receipt of such application. (3) This rule shall be endorsed on every notice given under the provisions of rules 47,48 and 49.” A bare reading of Rule 52 make it apparent that any consumer can file an CWP No.3939 of 2007 [9] appeal before the Inspector whenever any danger is apprehended. The cost of inspection and test of consumer's installation under Rule 53 are to be borne by the supplier and for a subsequent inspection by the consumer. Admittedly, in the present case, petitioner has not approached the Electrical Inspector. Therefore, the file of the present case be sent to the Chief Electrical Inspector/Electrical Inspector who according to the provisions of the Act and Rules shall carry an inspection of the site and determine whether the overhead lines have been erected in consonance with the provisions or not or whether any safety measures are to be undertaken. The Chief Electrical Inspector/Electrical Inspector, if so desire, may carry inspection and fasten any party with costs of inspection under the rules. The Chief Electrical Inspector/Electrical Inspector in the facts and circumstances of the case shall also determine whether any compensation is to be paid to the petitioner or not. With aforesaid observations, the present writ petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) December 14, 2009. JUDGE RC