Kerala High Court
Joseph C.A vs The District Magistrate ... on 29 March, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938
WP(C).No. 18958 of 2016 (T)
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PETITIONER(S) :
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JOSEPH C.A,
AGED 62 YEARS, S/O. ANTHAPPAN,
CHEETHAPARAMBIL, VADUTHALA P.O.,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK,
ERNAKULAM DISTRICT-682 023.
BY ADVS. SRI.G.HARIHARAN
SRI.PRAVEEN.H.
SMT.A.ANJANA
SMT.K.S.SMITHA
RESPONDENT(S) :
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1. THE DISTRICT MAGISTRATE (COLLECTORATE),
ERNAKULAM-682 030.
2. KERALA STATE ELECTRICITY BOARD,
VYDHYUDI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 014.
3. THE ASSISTANT ENGINEER,
KERALA STATE ELECTRICITY BOARD,
ELECTRICITY SECTION, VADUTHALA, ERNAKULAM-682 023.
R1 BY GOVERNMENT PLEADER SMT. LILLY.K.T
R2 & R3 BY ADV. SRI.SAJEEVKUMAR K.GOPAL, S.C
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16-06-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Msd.
WP(C).No. 18958 of 2016 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS :
P1 TRUE COPY OF THE ORDER DATED 29.03.2012 ISSUED BY
THE PERMANENT LOK ADALATH FOR PUBLIC UTILITY SERVICES
AT ERNAKULAM.
P2 TRUE COPY OF THE APPLICATION FILED BEFORE
THE 1ST RESPONDENT ON 29.10.2012.
P3 TRUE COPY OF THE ORDER DATED 10.08.2015 PASSED BY
THE 1ST RESPONDENT.
RESPONDENT(S)' EXHIBITS :
NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
A.M.SHAFFIQUE, J.
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W.P.(C).No.18958 of 2016
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Dated this the 16th day of June, 2016
J U D G M E N T
This writ petition has been filed challenging Ext.P3 order by which the Additional District Magistrate did not consider the claim of the petitioner on the ground that the claim is beyond the scope of Section 17 of the Telegraph Act, 1885.
2. The petitioner filed an application before the Kerala State Electricity Board for shifting an electric line passing through the north eastern corner of his property. According to him, the line can be shifted to the pathway on the other side. Since no action was taken in the matter, the petitioner had approached this Court by filing W.P.(C).No.5889/2015. As per the direction of this Court, the matter was referred to the Additional District Magistrate. The Additional District Magistrate formed an opinion on the basis of judgment of this Court in Ali v. Additional District Magistrate [2013 (4) KLT 428] that Section 17 does not apply to the factual situation, since the request of the petitioner is to shift the line to a pathway. Section 17 will apply only in instances where the shifting is permissible to any other part of the property of the applicant. The learned counsel for the petitioner relied upon the judgment of this Court in Gopinathan Nair v. Kerala State Electricity Board and Others [ILR 2015 (3) Kerala 444] wherein this Court held at paragraph 6 and 7 as under :
"6. It is not as if the Additional District Magistrate has no W.P.(C).No.18958 of 2016 2 jurisdiction to order a shifting beyond the boundaries of a property. The power is abundant under Rule 3 of the Works of Licensees Rules, 2006 ('the Rules' for short). The Rules have been framed under Sections 67(2) and 176(2)(e) of the Electricity Act, 2003. Rule 3 of the Rules is as under :
"3. Licensees to carry out works.-(1) A licensee may-
(a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land:
(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:
Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works:
Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered.
(2) When making an order under sub rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix, after considering the representation of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier. (3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub rule (1) shall be subject to revision by the Appropriate commission.
(4) Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act."
7. The first proviso to Rule 3(1) of the Rules empowers the licensee (KSEB) to obtain permission in writing from the W.P.(C).No.18958 of 2016 3 District Magistrate. The second proviso to Rule 3(1) enables the owner or occupier to make a motion with the District Magistrate for permission in writing. Such permission is for carrying out the works including removal or alteration of support, stay or strut. The power can be exercised to shift the post and electricity supply line beyond the boundaries of a property even. The restriction to be within the boundaries can be seen under Section 17 of the Indian Telegraph Act, 1885. There is however no such restriction under the Rules which the Additional District Magistrate has lost sight of. It will be atrocious to hold that there is no power to shift beyond the boundaries of a property."
3. In the light of the aforesaid judgment, the contention is that, the order Ext.P3 is liable to be set aside as the Additional District Magistrate has the power to adjudicate on such issues as well under the Electricity Act and Rules thereunder.
4. Heard the learned counsel for the respondent Board as well. The learned counsel points out that there is a Division Bench judgment in Moan M. Joseph v. The Kerala State Electricity Board [2014 (2) KLT 13] which has already been taken note of in Gopinathan Nair's case (supra), wherein this Court had formed an opinion referring to Section 17(1) of the Indian Telegraph Act that the jurisdiction of the Additional District Magistrate is only to direct shifting to the property belonging to the applicant itself. But it seems that, the relevance of the Works of Licensees Rules, 2006 framed under Section 67(2) and 176(2)(e) of the Electricity Act, W.P.(C).No.18958 of 2016 4 2003 was not considered by the Division Bench. When the statute itself provides for a remedy in terms of the second proviso to Section 3(1)(b), there cannot be any doubt regarding the power of the Additional District Magistrate, who was not looked into the aforesaid provisions, while adjudicating Ext.P3.
In the said circumstances, Ext.P3 order is set aside. The Additional District Magistrate shall consider the matter afresh in the light of the judgment laid in Gopinathan Nair's case (supra). Necessary orders shall be passed within a period of three months from the date of receipt of a copy of this judgment, after notice to the petitioner as well as other objecting parties.
This writ petition is disposed of as above.
Sd/-
A.M.SHAFFIQUE, JUDGE.
AV