Kerala High Court
P.A.Ouseph vs Green Filed Residents Association on 5 June, 2009
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 14531 of 2002(E)
1. P.A.OUSEPH, S/O.ANTONY, AGED 65,
... Petitioner
2. ELSY, W/O.OUSEPH, AGED 58 YEARS,
Vs
1. GREEN FILED RESIDENTS ASSOCIATION,
... Respondent
2. ADDITIONAL DISTRICT MAGISTRATE,
3. ASST. EXECUTIVE ENGINEER,
4. CHIEF ENGINEER, ELECTRICAL TRANSMISSION,
5. THE KERALA STATE ELECTRICITY BOARD,
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.KODOTH SREEDHARAN, SC, KSEB
The Hon'ble MR. Justice V.K.MOHANAN
Dated :05/06/2009
O R D E R
V.K.MOHANAN, J.
----------------------------------------
O.P. No.14531 OF 2002
&
O.P.No.10255 of 2002
----------------------------------------
Dated, 5th June, 2009
JUDGMENT
Order No.K.Dis.21412/00/C4 dated 10.01.2002 is the order under challenge in these writ petitions. In exercise of the powers conferred upon the Ist respondent under section 17 of the Telegraph Act, he issued, the above order by which it is stated that the towers and angle points erected between angle point B18 to B21 inconsistent with the original route map and tower schedule should be shifted and erected at the points specified in the original route map approved by the Chief Engineer on 19.12.94. It was further held that the line can be drawn accordingly. It was also directed that Ist and 2nd respondents shall implement the above order within three months from the date of the order. It is further directed that the 3rd respondent shall comply with the directions of this Court dated 15.11.2000. Challenging the above order, the O.P.NOS.10255 & 14531/02 -:2:- Kerala State Electricity Board, who is the authority and licencee for the supply of electrical energy, made the proposal for drawing 110 KV line from Madakathara to Valapad between angle point B18 to B21, prefers O.P.No.10255/2002. Challenging the very same order, another affected person by the drawing of the line, prefers O.P.No.14531/2002. The proposal for the drawing of the above line was originally approved and permitted by the Government of Kerala much earlier and now it is a fact that line has already been drawn. The case of the petitioners in the above two writ petitions is that the impugned order passed by the Additional District Magistrate, Thrissur is without jurisdiction and hence, the same is liable to be set aside. The order impugned in these writ petitions is issued by the said authority on the basis of the petition preferred by the 2nd respondent in O.P.No.10255/2002.
2. It is the common case of the petitioners in the above two writ petitions that on the basis of direction contained in O.P.NOS.10255 & 14531/02 -:3:- Ext.R2(e) judgment, which produced by the 2nd respondent along with his counter affidavit, the line has already been drawn as directed by the learned Single Judge of this Court and the Chief Engineer, Electricity (Transmission) personally verified the drawing of the line as proposed and he had also reported as evidenced by Ext.P3 that the line was drawn in accordance with the proposal. It is also the case of the petitioners that against the said judgment, a writ appeal was preferred by the 2nd respondent mentioned above as W.A.No.2938/2000. The said writ appeal was disposed of by a Division Bench of this Court along with a contempt case CCC No.1182/2000 as per Ext.P5 judgment. According to the counsel for the petitioner, Ext.P5 judgment is dated 11.6.2001 whereas Ext.P3 report of the Chief Engineer is dated 16.11.2000. Therefore, if the 2nd respondent has got any grievance pursuant to the report of the Chief Engineer and the line is not drawn in accordance with the proposal and in violation of Ext.R2(e) judgment, the same could have been O.P.NOS.10255 & 14531/02 -:4:- brought to the notice of the Division Bench at the time of passing Ext.P5 judgment. That was not done by the contesting respondent, and thus, according to the petitioners, the line which has already been drawn by the Board got finally approved by the Division Bench. If that be so, according to the petitioners, the Additional District Magistrate has no jurisdiction to reopen the issue , as stated in Ext.P5, under the guise of exercising his jurisdiction under section 17 of the Telegraph Act. It is also argued that Section 17 of the Telegraph Act is designed to give an opportunity to the individual property holders or owners to shift a line which already established for the utilisation of the property conveniently according to the their need. It is pointed out that the impugned order is issued not on the basis of any dispute or objection at the instance of any property owner or holder but at the instance of an association of property owners. It is also the case of the counsel for the petitioners that even by exercising jurisdiction under Section 17, the authority cannot O.P.NOS.10255 & 14531/02 -:5:- order for the shifting of the line which is already established beyond the limit of the property through which it is already drawn. But in the present case, while passing the above order, the authority concerned exceeded the above jurisdiction also.
3. The learned counsel for the 2nd respondent in O.P. No.10255/2002, who is the Ist respondent in O.P.No.14531/2002, submitted that the line now drawn by the Board is not in accordance with the originally approved route and in violation of the direction contained in Ext.R2 (b) and (e) judgments of this Court. To substantiate the above contention, the learned counsel invited my attention to Ext.P3 in O.P.No.10255/2002, which is report of the Chief Engineer, and also the finding of the Additional District Magistrate contained in the impugned order. Thus according to the learned counsel, the line is drawn totally in violation of the statutory provisions and also in violation of the judgment of this Court and the present order is passed by the authority O.P.NOS.10255 & 14531/02 -:6:- as directed by this court as per Ext.P5 judgment and therefore, both the writ petitions are liable to be dismissed.
4. I have heard Sri C.K.Karunakaran, the learned Standing Counsel for the K.S.E.B; Sri A. Mohamed Mustaque appearing for and on behalf of the petitioner in O.P.14531/2002 and Addl.3rd respondent in O.P.10255/2002; Sri P.R.Venkitesh appearing for the Ist respondent in O.P.14531/2002 and 2nd respondent in O.P.10255/2002 and the learned Government Pleader, and also perused the available materials.
5. Drawing of 110 KV line is not an easy job or task. For the drawing of such line from Madakathara to Valapad, route was originally approved by the government and the said line is now completely drawn in accordance with the proposal as averred by the petitioners in the writ petitions. But the contesting respondents have got a case that the line is not drawn in accordance with the route originally approved. The fact remains, which is beyond dispute, that 110 KV line has O.P.NOS.10255 & 14531/02 -:7:- already been drawn years back. The impugned order is issued by the Additional District Magistrate, Thrissur under section 17 of the Indian Telegraph Act. On a reading of the various provisions of the Indian Telegraph Act, 1885, it can be seen that in view of section 16, if the proposal to draw line is resisted or obstructed, the authority concerned shall obtain sanction from the District Magistrate and line can be drawn accordingly. So at the time of filing application under section 16, powers are vested with the Magistrate who enquire into the feasibility and viability of the line proposed on the basis of the evidence adduced and, if the Magistrate is satisfied, the proposal can be modified or permission can be given. Thus, it is for the District Magistrate, the statutory authority, to see that least inconvenience is caused to the property owners while drawing the line, the route suggested is economically viable and technically feasible. If the aggrieved party further challenge the same, that can be challenged according to his advice and on finalisation of the proceedings, if any, the O.P.NOS.10255 & 14531/02 -:8:- same will become final, and on the basis of such final outcome of the entire proceedings and after the drawing of the line, there is no question of invoking Section 17 for reopening such issues. In the present case, it is crystal clear that on the basis of the Ext.R2(b) and (e) judgments, the lines were already drawn and, as directed by this Court in the above judgments, the Chief Engineer has verified personally through spot inspection and made a report as evidenced by Ext.P3. Though the contesting respondent has preferred Writ Appeal No.2954/2000 against O.P.11871/2000 and also C.C.C.No.1182/2000 connected with O.P.No.32491/2000, no challenge was made or raised before this Court after Ext.P3 report of the Chief Engineer. Therefore, it can be seen that the contesting respondent has relinquished all his contentions or he failed to take appropriate further legal steps against Ext.P5 judgment and the finalisaiton and drawing of the line.
6. It is relevant to note that nothing was brought to the notice of the Division Bench of this Court while passing Ext.P5 O.P.NOS.10255 & 14531/02 -:9:- judgment. It is also a fact which shall not be omitted to note that in the contempt case filed by the contesting respondent, his allegation was that the authorities concerned drawn line in deviation of the approved plan and in violation of the judgment of this Court and those allegations and contentions were considered by the Division Bench of this court and the Division Bench has held that it cannot be said that there is any contumacious conduct on the part of respondents 1 and
2. Thus the writ appeal and contempt case were disposed of vide Ext.P5 judgment. It is true that while passing Ext.P5 judgment, the Division Bench has observed that : "if the petitioner in C.C.C and appellants in Writ Appeals have still got any grievance regarding the alignment of the line, it is for them to approach the District Magistrate under Section 17 of the Indian Telegraph Act for appropriate orders in the matter of shifting the line". From a reading of the above portion of Ext.P5 judgment, it can be seen that the Division Bench did O.P.NOS.10255 & 14531/02 -:10:- not give opportunity to the contesting respondents to reopen the issue which was already settled as per Ext.P5. It is specifically held that if the contesting respondent has got any further grievance, he can invoke Section 17 of the Act for appropriate orders in the matter of shifting the line. If that be so, it is for the Additional District Magistrate to consider the question of shifting of the line in accordance with the mandate contained in Section 17. Going by the impugned order, it can be seen that no such enquiry was initiated by the said authority.
7. In this juncture it is apposite to consider the contention raised by the petitioners in these writ petitions. Section 17 reads:
"17. Removal or alteration of telegraph line or post on property other than that of a local authority.-(1) When, under the foregoing provisions of this Act, a telegraph line or post has been placed by the telegraph authority under, over, along, across, in or upon any property, not being property vested in or under the control or management of a local authority, and any person O.P.NOS.10255 & 14531/02 -:11:- entitled to do so desires to deal with that property in such a manner as to render it necessary or convenient that the telegraph line or post should be removed to another part thereof or to a higher or lower level or altered in from, he may require the telegraph authority to remove or alter the line or post accordingly:
Provided that, if compensation has been paid under Section 10, clause (d), he shall, when making the requisition, tender to the telegraph authority the amount requisite to defray the expense of the removal or alteration, or half of the amount paid as compensation, whichever may be the smaller sum.
(2) If the telegraph authority omits to comply with the requisition, the person making it may apply to the District Magistrate within whose jurisdiction the property is situate to order the removal or alteration.
(3) A District Magistrate receiving an
application under sub-section (2) may, in his
discretion, reject the same or make an order, absolutely or subject to conditions, for the removal of the telegraph line or post to any other part of the property or to a higher or lower level or for the alteration of its form; and the order so made shall be final".
From the above wordings, it is crystal clear the powers given to the District Magistrate so as to save the interest of persons who are the owners or holders of the land so as to remove O.P.NOS.10255 & 14531/02 -:12:- the line which already drawn and established for the purpose of convenience and management or use of the property in question. In the present case, as evidenced by the impugned order, the petition under section 17 of the Telegraph Act is preferred by an association and not by individual owners or holders of the land. The learned Standing Counsel for the Board made available to me a copy of the judgment dated 15.10.2008 of a Division Bench of this Court in W.A.No.1964/2008, wherein, it is held that a reading of Section 17 of the Act would make it clear that the telegraph lines/electric lines can be shifted within that property where the electric lines have been drawn and it cannot be shifted to yet another property which may or may not belong to the persons concerned. If that be so, it can be seen that the impugned order is passed by the authority beyond the scope of Section 17. In Moidu v. District Magistrate (1998(1) KLT
442), it is also held that the person who applies under section 17 should be the owner of a property under which the O.P.NOS.10255 & 14531/02 -:13:- line or post is situated. Request should be to transfer the post to another portion in the same property. In the present case, the petitioner before the Ist respondent is an association which has no land in the property in question and the place to which line ordered to be shifted is not the same property. So in view of the above settled position and law, it can be seen that the impugned order is issued without any jurisdiction and in view of the facts and circumstances involved in the case.
8. As per Ext.P5 judgment, the issue regarding the drawing of line and its correctness etc. were finally concluded and no dispute was raised before passing Ext.P5 judgment. Therefore, the issue once closed as per the judgment of this Court cannot be reopened by the statutory authority under the guise of exercising his powers under section 17 of the Indian Telegraph Act. It is relevant to note that, since as per Ext.P5 judgment, such a direction was given to the Ist respondent, it is for him to satisfy the condition requisite for O.P.NOS.10255 & 14531/02 -:14:- invoking Section 17 of the said Act.
In the result, the Original Petitions are allowed quashing the impugned order, namely, Order No.K..Dis.21412/00/C4 dated 10.01.2002 issued by the Ist respondent.
V.K.MOHANAN, JUDGE kvm/-
O.P.NOS.10255 & 14531/02 -:15:- V.K.MOHANAN, J.
O.P.Nos .10255 & 14531/2002 JUDGMENT Dated:5.6.2009..