JOKHIRAM MAHESIKA Vs. BHAGALPUR ELECTRIC SUPPLY CO LTD

JUDGEMENT

(1.) The petitioners, Jokhiram Mahesika and his son Ram Prasad Mahesika have been convicted by a Magistrate of the first class of an offence under Rule 124, Indian Electricity Rules, 1937, and sentenced to pay a fine of Rs. 200 and in default of payment to one month's rigorous imprisonment, and also in respect of a continuing breach of the said Rule, to a daily fine of Rs. 10 each from 27-4.1945, until the said breach is removed. On appeal the learned Sessions Judge of Bhagalpur confirmed the convictions and sentences.

(2.) It will be convenient first to set out the relevant provisions of the Indian Electricity Act, 1910, and of the Indian Electricity Rules, 1987, made thereunder. Section 2, and sub paras. (A), (f), (i) and (1) of the Act are as follows: 2. In this Act, expressions defined in the Indian Telegraph Act, 1885, have the meanings assigned to them in that Act, and unless there is anything repugnant in the subject or context,-- (a) aerial line, means any electric supply line which is placed above ground and in the open air: .... (f) electric supply-line means a wire conductor or other means used for conveying, transmitting or distributing energy together with any casing, coating, covering, tube, pipe or insulator enclosing, surrounding or supporting the same or any part thereof, or any apparatus connected therewith for the purpose of so conveying, transmitting or distributing such energy. ... (i) main means any electric supply-line through which energy is, or is intended to be, supplied by a licensee to the public: ... (1) Service-line means any electric supply line through which energy is, or is intended to be, supplied by a licensee: (i) to a single consumer either from a distributing main or immediately from the lisensee's premises, or (ii) from a distributing main to a group of consumers on the same premises or on adjoining premises supplied from the same point on the distributing main. Section 50 of the Act provides: 50. No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same. Rule 2, Sub-rule (2), Electricity Rules, 1937, provides: (2) In these rules other words and expressions have the same meaning as are assigned to them in the Act. Rule 5, Sub-rule (4) thereof provides: (4) An Inspector may serve an order in the form set out in Annexure VIII upon any licensee, non-licensee, consumer or occupier, calling upon him to comply with any specified rule and the person so served shall thereupon comply with the order within the period named therein, and shall report in writing to the Inspector when the order is complied with: Provided that, it within that period an appeal is filed against the order the appellate authority may suspend its operation pending the decision of the appeal. Rule 69 thereof provides: 69 Height from ground and distance from buildings (1) Every conductor of an aerial line (not being a trolley-wire or a traction feeder on the same support as trolley-wire) shall be (a) at least 20 feet above the ground where it is over any part of a street or other public place: (b) inaccessible, either from ground or from any building or structure, whether permanent or temporary, except by the aid of ladder or other special appliance. (2) Where an aerial line is on a consumer's or an owner's premises, the height of every conductor from the ground or from any mineral or refuse dump and from parts of buildings or structures to which persons have access, shall unless the conductors are adequately guarded, be not less than 15 feet or such greater height as may be necessary to prevent danger. (3) The owner of the aerial lines shall be responsible for ensuring that the provisions of Sub-rules (1) and (2) are observed. Rule 70 thereof provides: 70 Erection or alteration of buildings. (1) If, at any time subsequent to the erection of an aerial line any person proposes to erect a new building or structure, whether permanent or temporary or to make in or upon any building or structure any permanent or temporary addition or alteration he shall, if such building, structure, addition or alteration would, during or after construction, result in a contravention of the provisions of Sub-rule (1) or Sub-rule (2) of Rule 69 give notice in writing of his intention to the owner, and to an Inspector, and shall furnish therewith a scale drawing showing the proposed building, structure, addition or alteration and the scaffolding required during its construction: Provided that the owner may, before so altering the aerial line, require the person from whom the notice was received to deposit the estimated cost of such alteration. (2) On receipt of such notice the owner shall, without undue delay, so alter the aerial line as to ensure that it will not be accessible in such a manner as to contravene the provisions of Sub-rule (1) or Sub-rule (2) of Rule 69 either during or after construction and shall be entitled to recover, from the person from whom the notice was received, the cost of such alterations which shall be deemed to include the following items, namely: (i) the cost of additional material used on the alteration; (ii) the wages of labour employed in effecting the alteration; (iii) supervision charges to the extent of 15 per cent of item (ii); and (iv) any charges incurred by the owner in complying with the provisions of Section 16 in respect of such alterations. (3) No work upon the building, structure, addition or alteration shall be commenced until the Inspector has certified that neither during nor after construction the provisions of Sub-rule (1) or Sub-rule (2) of Rule 69 will be contravened; Provided that an Inspector may, if he is satisfied that the aerial line has been so guarded as to secure the protection of persons and property from injury or risk of injury, permit the work to be executed prior to, or, in the case of a temporary addition or alteration, without the alteration of the aerial line and finally Rule 124 thereof provides: 124. Penalty for breach of rules. Whoever, being licensee or non-licensee or consumer or authorised person, or the agent or manage of a licensee, non-licensee or consumer commits a breach of these rules or, being a person specified in Rule 70(1) commits a breach of that rule, shall be punishable for every such breach with fine which may extend to three hundred rupees, and in the case of a continuing breach with a further fine which may extend to fifty rupees for every day after the first during which the breach has continued.

(3.) The particulars of the alleged offence were stated to the petitioners by the learned Magistrate under Section 242, Criminal P.C., in the following terms: You have been building a house in close proximity to the electric line of the Bhagalpur Electric Supply Company's line which is easily accessible without the necessary consent.