Kerala High Court
The Kerala State Electricity Board vs Bineesh.A.R on 2 December, 2005
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY,THE 5TH DAYOF SEPTEMBER 2013/14TH BHADRA, 1935
WP(C).No. 4037 of 2011 (D)
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PETITIONERS :
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1. THE KERALA STATE ELECTRICITY BOARD,
VYDHUDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM
REPRESENTED BY ITS SECRETARY.
2. THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, SULTHANPET, PALAKKAD.
3. ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SECTION, SULTHANPET, K.S.E.BOARD
PALAKKAD.
4. ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, KANJIKODE, PALAKKAD.
BY SR.ADV.SRI.P.SANTHALINGAM,SC, KSEB
ADV.SRI.C.K.KARUNAKARAN, SC FOR KSEB
RESPONDENT(S):
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1. BINEESH.A.R., SANTHANAM,
SILVER LINE HOMES, DURGA NAGAR EXTENTION
NEAR MANAPPULLIKKAVU, KUNNATHURMEDU,
PALAKKAD- 678 014
2. REMESH BALAGOPAL,'SREYAS',
SILVER LINE HOMES, DURGA NAGAR EXTENTION
NEAR MANAPPULLIKKAVU, KUNNATHURMEDU,
PALAKKAD - 678 014
R1 & R2 BY ADVS. SRI.HARISH R. MENON
SRI.K.T.SHYAMKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05-09-2013, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
AV
WP(C).No. 4037 of 2011 (D)
APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 : TRUE COPY OF THE COMPLAINT FILED BY THE RESPONDENTS
BEFORE THE CGRF AS ORIGINAL PETITION NO.48/2009
EXHIBIT P2 : TRUE COPY OF THE COUNTER STATEMENT FILED BY THE BOARD
BEFORE THE CGRF
EXHIBIT P3 : TRUE COPY OF THE REQUEST, DATED 02.12.2005 SUBMITTED BY
THE RESPONDENTS BEFORE THE BOARD
EXHIBIT P4 : TRUE COPY OF THE PROPERTY CROSSING AGREEMENT, DATED
05.12.2005 EXECUTED BETWEEN THE PETITIONERS AND RESPONDENTS
EXHIBIT P5 : TRUE COPY SKETCH
EXHIBIT P6 : TRUE COPY OF THE ORDER, DATED13.07.2010 PASSED BY THE
CGRF
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.ATO JUDGE
AV
C.K. ABDUL REHIM, J.
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W.P.(C). No. 4037 of 2011
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Dated this the 5th day of September, 2013
JUDGMENT
The Kerala State Electricity Board and its officers have filed this writ petition aggrieved by Ext.P6 order passed by the Consumer Grievances Redressal Forum, Kozhikode. The respondents herein have approached the forum in Ext.P1 complaint against drawing of an overhead HT line of 11 K.V. capacity, in between their houses, without their consent. The respondents alleged that, the line in question was drawn by altering its earlier alignment fixed, at the intervention of some interested persons. It was also alleged that, no vertical or horizontal clearance as prescribed under the relevant statute is maintained in order to ensure prescribed safety norms. According to the respondents, drawing of line had resulted in restraining them from convenient usage of the upper portion of their houses, and the line is situated in a hazardous manner.
2. Before the Forum, the complaint was resisted by filing Ext.P2 counter statement. It was contended that the W.P.(C). No. 4037 of 2011 -2- complaint is not maintainable since the subject matter relates to drawing of electric line and the Additional District Magistrate is the competent authority to decide such disputes, under the Indian Telegraph Act. It is mentioned that, the predecessors in interest of the respondents have given consent for drawing of the line. According to the authorities the line was re-routed only because many houses were constructed under the right of way in the portions through which the line was originally intended to be drawn. It was contended that while drawing the line in the area there were requests from general public on the basis of which the line was re-routed to the nearby road after laying out the paddy fields. It was also mentioned that, the line was constructed with enough statutory clearance, horizontal and vertical, after getting approval from the Department of Electrical Inspectorate. It is also mentioned that despite drawing of the line in the year 2006 it was energised only in 7/2009, after getting orders from Additional District Magistrate with respect to the objections made in another similar W.P.(C). No. 4037 of 2011 -3- case.
3. The Forum found that the route was seen relocated without any valuable documents and the consent of property owners were not obtained as per Rule 3 of the Work of License Rules, 2006. The Forum had arrived at a finding that there was failure on the part of the petitioners in taking up the matter with the District Magistrate. Finding that the line drawn between the houses of the petitioners is illegal and against natural justice, the complaint was disposed of by directing the petitioners to relocate the line in question within three months on receipt of the order.
4. Contention of the petitioners is mainly on the aspect of jurisdiction. Sri. P. Santhalingam, learned Senior counsel appearing for the petitioners contended that, any issue pertaining to obstruction against drawing of line or with respect to the shifting of an existing electrical line are not matters coming within the jurisdiction of the Consumer Grievances Redressal Forum, which is constituted by virtue of obligation contained in Section 42 W.P.(C). No. 4037 of 2011 -4- (5) of the Electricity Act, 2003. A formal contention was also raised to the effect that, the Forum is established for redressal of grievances of the consumers alone and persons who are entitled to approach the forum is only the consumers. In this regard, reference is made to Sub- Sections (5) and (6) of Section 42 of the Act.
5. Learned counsel appearing for the respondents defended the contention relying on the definition of "Consumer" contained in Section 2(15) of the Act. It includes any person who is the supplied with electricity for his own use and also includes any person whose premises are being connected for the purpose of receiving electricity with the works of a license. Since the premises belonging to the petitioners are connected for the purpose of receiving electricity with the work of the licensee, the complainants before the Forum will fall within the definition of consumer under the Act, is the contention. Even assuming that the respondents will fall within the definition of consumer, question to be considered is as to whether they can approach the Forum for redressal of W.P.(C). No. 4037 of 2011 -5- grievance regarding drawing of electrical line through their property, without consent. Learned counsel appearing for the respondents had drawn my attention to the provisions contained in the Kerala State Electricity Regulatory Commission (Consumer Grievances Redressal Forum and Electricity Ombudsman) Regulations 2005, the definition of "complaint" contained in Regulation 2F includes grievance made with respect to the electricity services which are unsafe or hazardous to public life. Since contention was raised in Ext.P1 complaint to the effect that the line is drawn in a manner causing hazards to the life of persons and without maintaining statutory clearance, the complaint will squarely fall within the purview of Regulation 2F, is the contention.
6. It is pertinent to note that in the impugned order the forum has not gone deep into the aspect of the alleged unsafety in drawing the line. It has not decided whether the line in question is drawn by keeping proper horizontal and vertical clearances as mandated in the relevant statutory provisions.
W.P.(C). No. 4037 of 2011 -6-
7. While evaluating the legal contentions raised with respect to the jurisdiction of the Forum, it will be beneficial to have an advertence to provisions contained in Part 3 of the Indian Telegraph Act, 1885 read with Section 164 of the Electricity Act 2003. Section 10 of the Indian Telegraph Act empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and to plant posts in or upon any immovable property, subject to restrictions contained in the proviso to the said Section. Section 16(1) of the said Act provides that, if the exercise of power vested under Section 10 is resisted or obstructed in any manner, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise such powers. Therefore, it is clear that whenever there is any resistance or obstruction with respect to exercise of powers vested under Section 10, the authorities of the licensee has to approach the District Magistrate seeking permission to exercise such rights. In the impugned order, the Forum had referred to Rule 3 of the Works of License Rules 2006. W.P.(C). No. 4037 of 2011 -7- It provides that a licensee may place any electric supply line over or under any land with prior consent of the owner or occupier of such land. Proviso to Rule 3 says that in case where the owner or occupier of the land raises objection with respect to the work to be carried out, the licensee should obtain permission in writing from the District Magistrate. Second Proviso to Rule 3 specifies that if at any time the owner or occupier of any land on which any work have been carried out, the District Magistrate may order that such works is to be removed or altered. Sub-Rule 4 of Rule 3 provides that the provisions contained in Rule 3 shall not affect powers conferred upon any licensee under Section 164 of the Act. Section 164 empowers the Government to confer power of any licensee to exercise the powers of telegraph authority contained in the Indian Telegraphic Act, 1885. Therefore it is clear that, exercise of any powers vested on the licensee by virtue of Section 10 of the Indian Telegraph Act will not in any manner be fettered by provisions of Rule 3 of the Works of License Rules, 2006. Further, Rule W.P.(C). No. 4037 of 2011 -8- 3 when its read in consonance with the proviso thereof will indicate that the procedures contemplated under Section 16 and 17 of the Indian Telegraph Act is the appropriate procedure. In this regard, it is pertinent to note that Section 17 provides a remedy with respect to any person who is desirous of dealing with the property through which any line has been drawn by seeking removal or alteration of the line. Under Sub-Section 1 of Section 17, procedure is contemplated to approach the telegraph authority of the licensee. Section 17(2) provides that if the telegraph authority omits to comply with such requisition the person aggrieved can apply before the District Magistrate within whose jurisdiction the property is situated, to order such removal or alteration.
8. Facts of the case when analysed on the basis of various provisions illustrated as above, it is to be noticed that the respondents have not raised any objection at the time when the work of drawing of the line was carried out. Even accepting the contention of the respondents that they were not aware about such works and that they were W.P.(C). No. 4037 of 2011 -9- not given any intimation regarding any such work, it cannot be said that the exercise of power by the licensee in placing the line as conferred under Section 10 of the Indian Telegraph Act read with Section 164 of the Electricity Act 2003, is in any manner illegal, merely because no consent was obtained from the petitioners. Ones the line is placed through any immovable property in exercise of power conferred under Section 10 of the Indian Telegraph Act, the remedy left open to person aggrieved or prejudiced by such action is only a resort to the provisions contained in Section 17 of the Indian Telegraph Act. As long as the action cannot be termed as illegal on the basis of Rule 3 of the Works of License Rules, as found by the Forum in the impugned order, the action cannot be held as illegal.
9. With respect to the complaint regarding safety aspects, as already observed, the Forum has not arrived at any conclusion that any of the safety regulations have been violated. It is pertinent to note that, the contention of the petitioners before the Forum was to the effect that W.P.(C). No. 4037 of 2011 -10- the statutory clearance has already been provided. However, the appropriate authority look into those aspects may be the electricity authority or any other delegated authority as that of the Electrical Inspectorate.
10. Learned counsel for the respondents had placed for my reference a letter issued by the Electrical Inspector to the Executive Engineer of the first petitioner Board directing to shift the line in accordance with Rule 80 of the Indian Electricity Rules because drawing of the line is in violation of provisions contained in Section 53 of the Electricity Act. But it is noticed that, the respondents have not pursued any remedy based on such a letter by approaching the authority of the Electricity Board. Learned counsel further pointed out that, the requests for shifting of the line was submitted to the Executive Engineer concerned as early as in the year 2007, before charging of the line. The authorities of the KSE Board had failed to consider such requests. It is also noticed that, no further steps as contemplated under Section 17 was initiated on the basis of any such requests. In fact by W.P.(C). No. 4037 of 2011 -11- approaching the consumer Grievances Redressal Forum, the petitioners were agitating the issue before an authority who is not actually vested with powers. As already found the impugned order passed by the Forum cannot be sustained. At the same time, this court is of the opinion that the respondents should be given liberty to pursue the matter with respect to shifting of the line based that the alleged inconveniences as well as health hazards or violation of safety regulations.
11. Under the above mentioned circumstance, the writ petition is allowed and Ext.P6 order of the Consumer Grievances Redressal Forum, Kozhikode is hereby quashed. The writ petition is disposed of reserving liberty to the respondents to pursue the matter before the appropriate authority of the first petitioner Board seeking shifting of the line which is in dispute on all the available grounds as enumerated above. Needless to observe that, if such request is declined the respondents will be at liberty to exercise the powers vested under Section 17(2) of the Indian Telegraph Act.
W.P.(C). No. 4037 of 2011 -12-
12. Needless to observe that, if any approach is made by the respondents the same shall be dealt with by the competent authority without any further delay and appropriate decision shall be taken at the earliest possible.
Sd/-
C.K. ABDUL REHIM, JUDGE /true copy/ P. A. to Judge Pn