Jaipur Development Authority v. The State Of Rajasthan & Two Others

P.P Naolekar, J.:— Respondent No. 3 Smt. Shashi Jain, writ petitioner, is owner of plot No. 595 measuring 272 square yards situated in Mahaveer Nagar, Tonk Road, Jaipur. Mahaveer Nagar, Tonk Road Jaipur where the plot of respondent No. 3 is situated, is an approved colony. She had deposited development charges at the rate of twenty five rupees per square yards. The construction plan submitted by the respondent No. 3 was duly approved by the Jaipur Development Authority, the appellant, on 2.4.1985 When the plot was purchased and the permission was sought for for construction, a High Tension Line (HTL) of electricity was passing over the plot of the respondent No. 3. On an enquiry, she was informed by the Jaipur Development Authority that the HTL will be shifted along the road side. On 15th December, 1995 one Shri Sarvesh Jain received serious burn injuries on account of the HTL passing over the plot and the constructed building of the respondent No. 3 and thus a writ petition was filed by the respondent No. 3 seeking relief that HTL passing over her plot be removed immediately. The respondent No. 3 sought further appropriate writ, order or direction directing the respondents (in the writ petition) to shift the entire electricity line and poles from the residential colony of Mahaveer Nagar, Tonk Road, Jaipur which falls over the residential plots of the residents of the Colony. The learned Single Judge vide its order dated 15.10.1997 has allowed the writ petition in part and directions were given as under:—

“……and direct the respondents No. 2 and 3 to negotiate among themselves and to come to proper conclusion within a period of three months from today and if any amount is to be spent, the same shall be negotiated between the parties themselves and whatever the figures are agreed, would be deposited by the respondent No. 3 to respondent No. 2 within one month thereafter and the line shall be removed or diverted within one month from the depositing of such amount by the respondent No. 3 to the respondent No. 2….”

2. Thus the learned Single Judge has granted relief to the respondent No. 3 (writ petitioner) as regards to prayer made for removal of HTL from her plot on deposit of the cost by the Jaipur Development Authority with the Rajasthan State Electricity Board. So far the general relief claimed in the writ petition for removal of entire electricity line and poles from the residential colony of Mahaveer Nagar, Tonk Road, Jaipur which falls over the residential plots of residents of Mahaveer Nagar, no writ, order or direction was passed. Aggrieved by the directions issued by the learned Single Judge, the Jaipur Development Authority has come in the appeal.

3. It is submitted by the counsel for the Jaipur Development Authority that directions to deposit the amount for removal of the HTL by the J.D.A is contrary to law particularly so when the plot was purchased by the respondent No. 3 the HTL of electricity was in existence over her plot and brought to our notice Rule 82 of the Indian Electricity Rules, 1956.

4. On the other hand it is submitted by the learned counsel for the respondent No. 3 (writ petitioner) that it is the duty of the instrumentality of the State to secure the safety of the citizens and therefore the J.D.A who has approved the construction is duty bound to remove the HTL which causes danger to the persons residing there.

5. There cannot be any doubt that the personal security and safety is to be looked after and endeavour should be made to safeguard the persons from the danger of injury being caused by the HTL of electricity led by the RSEB, but the question is what methods and means are to be adopted for the said purpose and by whom. Rule 82 of the Indian Electricity Rules, 1956 is specific in that direction. Rule 82 lays down that when there is a proposal for erection of or alteration to buildings, structures, flood banks and elevation of roads subsequent to the erection of an overhead line (whether covered with insulating material or bare), any person proposes to erect a new building or structure or flood bank or to raise any road level or to carry out any other type of work whether permanent or temporary or to make in or upon any building or structure or flood bank or road, any permanent or temporary addition or alteration, the person who wants to make construction or addition or alteration to the construction and if such addition or alteration contravenes any of the provisions of Rules 77, 79 or 80, will give notice in writing of his intention to the supplier and to the Inspector and shall furnish therewith a scale drawing showing the proposed building, structure, flood bank, road and addition or alteration required during the construction. On receipt of the notice the respondent RSEB shall examine whether the overhead line was lawfully laid and whether the persons were liable to pay the cost of alteration and if so send a notice to a person with an estimate of cost of the expenditure likely to be incurred to alter the overhead line and would require him to deposit within thirty days from the receipt of the notice the amount of estimated cost with the Electricity Board. If there is a dispute of estimated cost of alteration of the overhead line or even the responsibility to pay such cost the dispute shall be referred to the Inspector by either of the parties whereupon same shall be decided by the Inspector. There is prohibitory mandate that no work upon such building, structure, road and addition or alteration shall be commenced or continued until the Inspector has certified that the provisions of Rules 77, 79 or 80 are not likely to be controverted either during or after the aforesaid construction. The Rule further provides for temporary permission before alteration of the overhead line if the Inspector is of the view that the overhead line has been so grarded that it will not cause a person or property injury or risk of injury. From Rule 82 it is absolutely clear that any person proposing erection or alteration of a building over a plot where High Tension Overhead Line whether covered with insulating material or bare is in existence, has to make an application for removal or shifting of the same and the cost for such shifting or removal shall be borne by that person.

6. It is admitted case of the respondent No. 3 that when the plot was purchased overhead High Tension Line was already led and going across the plot of the respondent No. 3 and in those circumstances it was her responsibility to take necessary steps for shifting or removal of the HTL before the construction was undertaken by depositing the cost of such removal or shifting of the overhead HTL. The respondent No. 3 had made construction of a building without following the due procedure of law and now she cannot claim that it is the responsibility of the RSEB or the JDA to remove the HTL from her plot. 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 petitioner) 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.

7. For the aforesaid reasons, the appeal is allowed and the order of the learned Single Judge dated 15.10.1997 is set aside. In the circumstances of the case, however we do not direct imposition of the cost on the respondent No. 3.