A.O. Jose v. Additional District Magistrate, Collectorate, Kakkanad, Kochi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 6TH DAY OF JANUARY 2014/16TH POUSHA, 1935** **WP(C).No. 28836 of 2013 (D) ---------------------------PETITIONER : --------A.O.JOSE,ARACKAL HOUSE, NN 200, NAZARETH NAGAR ANGAMALY, ERNAKULAM DISTRICT-683572.** **BY ADVS.SRI.K.B.DAYAL SRI.K.Y.TOMY** ## **RESPONDENT :** - **----------** **1. THE ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KAKKANAD, KOCHI-682030.** **2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KSEB, ANGAMALY.** **3. M.A.JOSE MOOJELY HOUSE, NAZARETH NAGAR, ANGAMALY ERNAKULAM DISTRICT-683572.** **4. JUSTIN JOSE, MOOJELY HOUSE, NAZARETH NAGAR, ANGAMALY ERNAKULAM DISTRICT-683572.** **5. A.D.MARTIN ARACKAL HOUSE, NAZARETH NAGAR, ANGAMALY ERNAKULAM DISTRICT-683572.** **6. A.O.GEORGE** - **ARACKAL HOUSE, NAZARETH NAGAR, ANGAMALY ERNAKULAM DISTRICT-683572.** **BY GOVERNMENT PLEADER SRI.M.A. ABDUL SHUKOOR R3 TO R5 BY ADVS. SRI.ELVIN PETER P.J.** **SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH BY SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 28836 of 2013 (D)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **-----------------------** **EXHIBIT P1 : TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE R2 DT.19-9-2012 BY THE R3-5. EXHIBIT P2 : TRUE COPY OF THE NOTICE NO.M5-39606/2013 DT.5-7-2013 ISSUED BY THE R1. EXHIBIT P3 : TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE R1. EXHIBIT P4 : TRUE COPY OF THE ORDER NO.K.DIS/39606/2013/MS DT.23-10-2013 ISSUED BY THE R1. EXHIBIT P5 : TRUE COPY OF THE SKETCH PRODUCED BY R2 BEFORE THE R1. RESPONDENT(S)' EXHIBITS : NIL. ----------------------//TRUE COPY// P.A. TO JUDGE** ## **BP** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 28836 of 2013 --------------------------------Dated this the 6th day of January, 2014 ## JUDGMENT Challenge is against Ext.P4 proceedings of the 1[st] respondent, which is evidently issued in exercise of powers vested under section 16(1) of the Indian Telegraph Act, based on a report submitted by the 2[nd] respondent alleging that the petitioner along with his brother Sri.A.O.George is objecting the shifting of an existing electric line to a pathway which is being used by them for access to their residences. 2. The petitioner and his brother had raised objection before the 1[st] respondent that, if the line is shifted to the pathway which is having width of only 10 feet, it will affect vehicular traffic. The 1[st] respondent conducted an inspection and it was noticed that the width of the pathway is more than 10 feet and it is being used by petitioner and his brother. The 1[st] respondent found that, the existing line drawn through properties of respondents 3 to 5 is in a dangerous situation. Therefore the 1[st] respondent accorded sanction to shift the WP(C). 28836 /2013 2 existing line through the route suggested by the 2nd respondent, on the expenses of respondents 3 to 5. 3. The impugned order is challenged on the ground that the line in question was existing since the last more than 25 years and that the respondents 3 to 5 cannot seek shifting of the line to any other alignment outside their properties. It is contended that the 1[st] respondent had dealt with the matter in a highly illegal and irregular manner, on the presumption that it is a complaint received invoking jurisdiction under section 16(1). It is also contended that the 2[nd] respondent, the authority vested with powers under the Indian Telegraph Act, had not dealt with the matter in accordance with the provisions contained in section 17(1). No decision was taken on the request made by respondents 3 to 5 seeking shifting of the line, after affording opportunity of personal hearing to the petitioner or his brother. Hence it is contended that the impugned proceedings is totally illegal and unsustainable. 4. From the facts it is revealed that the issue arises on the basis of an application submitted by respondents 3 to 5 seeking WP(C). 28836 /2013 3 shifting of the existing electric line. The 2[nd] respondent ought to have dealt with the matter invoking power vested under section 17(1) of the Indian Telegraph Act. In the case at hand there is no evidence to show that the 2[nd] respondent had considered the request on its merits, after affording opportunity to the petitioner or any other person affected. Moreover, question arises as to whether respondents 3 to 5 can seek a shifting of the line to any other property. Interpreting the provisions contained in section 17(1) and (2) of the Act, this court as well as the hon'ble Supreme Court had observed that shifting of an existing electric line can be possible only to any other part of the same property. In the decision in **Ali vs. Addl. District Magistrate (2013 (4) KLT 428)** it is found that the words, “ another part thereof” contained in section 17(1) indicates shifting of the telegraph line or post from the existing position to any other part of the property of the applicant. Therefore the authorities concerned has to consider the request on merits, taking note of the statutory provisions and settled legal precedents. Of course, if the authority had already taken any WP(C). 28836 /2013 4 such decision and if any obstruction is created in implementation of such decision, probably the jurisdiction of the 1[st] respondent can be invoked under section 16(1). But in the case at hand, evidently the shifting is proposed to outside the property of respondents 3 to 5, through a pathway being used by the petitioner and his brother upon which they have got rights. The authority had failed to consider sustainability of such request. The 1[st] respondent had also dealt with the matter as if it is an application submitted under section 16(1) . Hence this court is of the considered opinion that the impugned proceedings is totally illegal and irregular. 5. Learned counsel for respondents 3 to 5 raised a contention that the 1[st] respondent had categorically found that the existing line is situated in a dangerous position. Therefore it is contended that the impugned proceedings can be considered as one issued in exercise of power vested under section 147 of Cr.PC. But nothing is indicated in the impugned order with respect to exercise of power vested under section 147 and there is no compliance of any procedure requisite for such proceedings. WP(C). 28836 /2013 5 Hence the contentions on this respect cannot be countenanced. 6. Further contention raised on behalf of respondents 3 to 5 is that, since the existing line is in a dangerous position it need to be shifted to some other route, notwithstanding the application for shifting submitted by respondents 3 to 5. It is always left open to the authorities of the Electricity Board to take appropriate decision in re-routing any existing line, if it is convinced that existence of the present line is in any manner dangerous to human life. 7. As observed above, the impugned proceedings cannot be sustained legally. Hence the writ petition is allowed and Ext.P4 proceedings is hereby quashed. 8. However, it is made clear that the above judgment will not stand in the way of respondents 3 to 5 approaching the appropriate authority under section 17(1) with any fresh application and against the said authority considering such application on the basis of the legal provisions contained in the relevant statute. This will not also stand in the way of the appropriate authority in the Board taking any decision suo motu WP(C). 28836 /2013 6 in shifting of the line. But if any such proceedings is initiated in any manner affecting the petitioner, then the said authority should afford opportunity of personal hearing to the petitioner and other persons so affected. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 28836 /2013 7