Daniel and Manmadhan v. Additional District Magistrate, Alappuzha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938** **WP(C).No. 990 of 2016 (W) --------------------------** ## **PETITIONER(S)/PETITIONERS:** **-------------------------** ## **1. DANIEL, AGED 60 YEARS,** **S/O MATHAI,CHALIYIL KIZHAKKETHIL HOUSE, KAPPIL MEKKU, KRISHNAPURAM, ALAPPUZHA DISTRICT.** **2. MANMADHAN, AGED 60 YEARS, S/O.KUMARAN, CHALIYIL KIZHAKKETHIL HOUSE, KAPPIL MEKKU, KRISHNAPURAM, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.GEORGE SEBASTIAN SRI.P.ARUN CHANDRE** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. THE ADDITIONAL DISTRICT MAGISTRATE, ALAPPUZHA - 688 001.** **2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KSEB, KAYAMKULAM - 690 502.** **3. SUDHAKARAN V.K.,** **DILEEP BHAVANAM, KAPPIL MEKKU, KRISHNAPURAM, ALAPPUZHA DISTRICT - 688 001.** **R1 BY GOVERNMENT PLEADER SRI.BOBBY JOHN R2 BY SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB R3 BY ADVS. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-07-2016 ALONG WITH WPC. 2572/2016, THE COURT ON 27-09-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 990 of 2016 (W) --------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** - **P1 A TRUE COPY OF THE NOTICE DATED 21.12.2015 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER** - **P2 A TRUE COPY OF THE REPRESENTATION DATED 31.12.2015 FILED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT.** - **P3 A TRUE COPY OF THE ORDER BEARING NO.K.DIS.2044/UPS/15/N2 DTD.6.1.2016 PASSED BY THE 1ST RESPONDENT.** - **P4 A TRUE COPY OF THE ROUGH SKETCH OF THE PROPERTY IN QUESTION.** - **P5 A TRUE COPY OF THE PROPERTY CROSSING AGREEMENT SIGNED BY THE 1ST PETITIONER AND ABDUL KALAM ASAD.** ## **RESPONDENT(S)' EXHIBITS** - **-----------------------** - **EXT.R3A: TRUE COPY OF THE ENVELOPE CONTAINING THE ORDER OF THE 1ST RESPONDENT.** - **EXT.R3B: TRUE COPY OF THE ORDER DTD.6.1.2016 OF THE 1ST RESPONDENT.** **EXT.R3C: TRUE COPY OF THE ROUGH SKETCH INDICATING THE LIE AND NATURE OF THE PROPERTIES AND THE PATHWAY. EXT.R3D: TRUE COPY OF THE DOCUMENT DTD.4.4.1996. EXT.R3E: TRUE COPY OF THE TAX RECEIPT. EXT.R3F: TRUE COPY OF THE OBJECTION SUBMITTED BY THE 3RD RESPONDENT BEFORE THE FIRST RESPONDENT.** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) Nos. 990 & 2572 of 2016 ======================= Dated this, the 27[th] day of September, 2016 ## **J U D G M E N T** Since common issues arise for consideration in these writ petitions, they are heard and decided together. 2. WP(C) No. 990/2016 is filed challenging Ext.P3 order of the Additional District Magistrate by which a decision was taken to relocate the electric line drawn through the property of the 3[rd] respondent to a nearby public road. The main contention urged by the petitioners is that an electric post is situated in the 3[rd] respondent's property for the last forty years. There is a pathway on the northern side of the 3[rd] respondent's property and the 1[st] petitioner is having an item of property on the northern side of the said pathway. Petitioners and certain other persons who own properties on the western side of the 3[rd] respondent's property are using the said pathway. On the request of the 3[rd] respondent for shifting of the electric post and electric line to the northern side outside his boundary, the matter was referred to the 1[st] respondent, Additional District Magistrate, who passed the impugned order. The W.P(C) Nos.990 & 2572/16 -:2:- main contention urged by the petitioners is that no opportunity was given to the petitioners to prefer objection and the order was passed without complying with any of the statutory requirements. 3. Though it was initially contended that copy of the order was not served on the petitioners, during the pendency of the writ petition, the learned Government Pleader had handed over a copy of the order to the petitioners, which was challenged by amending the writ petition. 4. In the counter affidavit filed by the 3[rd] respondent, it is contended that shifting of the line does not affect the 1[st] petitioner in any manner and the 2[nd] petitioner lives almost 10 kms away from the property. The order passed by the 1[st] respondent on 6/7/2016 was served on the 3[rd] respondent on 14/1/2016. It is also contended that the 3[rd] respondent had personally witnessed service of order by the 1[st] respondent to the 1[st] petitioner. Further it is contended that the shifting of the electric post will not cause any trouble to any other person in the locality. 5. Further it is contended that the 1[st] petitioner was also W.P(C) Nos.990 & 2572/16 -:3:- intimated about the date of hearing and his arguments were also taken note of by the 1[st] respondent. It is therefore submitted that the impugned order is passed after complying with all the procedural requirements. 6. A reply affidavit is filed by the petitioners controverting the statement made by the 3[rd] respondent. Additional counter affidavit is filed _inter alia_ stating the manner in which the pathway was being utilized. 7. The main issue projected by the petitioners is regarding the jurisdiction of the 1[st] respondent to have invoked Section 17 of the Act especially in the light of the Division Bench judgment in _**Moan M.Joseph v. Kerala State Electricity Board**_ (2014 (4) KLT 22) wherein a Division Bench of this Court held that power under Section 17 of the Telegraph Act can be invoked only for shifting the telegraph line or post to another part of the property or to a higher or lower level and cannot be invoked for shifting the line to the adjacent pathway which is outside the property of the applicant. Para 4 is relevant, which reads as under:- ## W.P(C) Nos.990 & 2572/16 ## -:4:- _“4. Reading of the above provision shows that the removal or alteration of the telephone line or post that is permissible under this provision is to shift it to another part of the property through which the line is passing or the post is laid or to alter the line or the post to higher or lower level or alter in form. In other words, shifting of a line or post that is permissible under this provision can only be from one part of the property through which the line is passing to another part and not outside the property. If that be so, Ext.P3 order permitting shifting of the line to the adjacent pathway, which is outside the property of the 5th respondent, is clearly beyond the scope of S.17.”_ 8. In WP(C) No. 2572/2016, petitioner challenges Ext.P9 order passed by the Additional District Magistrate while considering an application under Section 17 of the Act. By Ext.P9, the Additional District Magistrate directed removal of the electric line from the property of Sri.T.N.Rajan to the nearby Government puramboke land. The facts involved in the writ petition would disclose about the request made by the 4[th] respondent to shift the electric line to a pathway invoking Section 17 of the Indian Telegraph Act. It is contended that the order passed is without jurisdiction in the light of the judgment in _**Moan M.Joseph**_ ## W.P(C) Nos.990 & 2572/16 ## -:5:- (supra). 9. Heard the learned counsel appearing on either side. 10. The only question to be considered in these writ petitions is regarding the jurisdiction of the Additional District Magistrate to have passed the impugned orders. There is no dispute regarding the law laid down by the Division Bench of this Court in _**Moan M.Joseph**_ (supra). However, learned Standing Counsel for the Electricity Board placed reliance on the judgment of a learned Single Judge of this Court in _**Gopinathan Nair v. Kerala State Electricity Board and others**_ (ILR 2015 (3) Ker. 444) wherein the learned Single Judge after placing reliance on Rule 3 of the Works of Licensees Rules, 2006 held that there is no such restriction under the Rules by which the Additional Magistrate could be deprived of the right to consider shifting of the line to a property beyond the boundaries of the applicant's property. Paras 6 and 7 of the judgment are relevant, which read as under:- _“6. It is not as if the Additional District Magistrate has no jurisdiction to order a shifting beyond the boundaries of a property. The power is abundant_ ## W.P(C) Nos.990 & 2572/16 ## -:6:- _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 waiting 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_ ## W.P(C) Nos.990 & 2572/16 ## -:7:- _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 represenations 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 licencee (K.S.E.B.) to obtain permission in writing from the 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_ ## W.P(C) Nos.990 & 2572/16 ## -:8:- _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.”_ 11. Further, I had occasion to rely upon judgment in _**Gopinathan Nair**_ (supra) and had decided a case as per judgment dated 16/6/2016 in WP(C) No. 18958/2016, wherein, it was held at para 4 as under:- _“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, 2003 was not considered by the Division Bench. When the_ W.P(C) Nos.990 & 2572/16 ## -:9:- _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.”_ 12. One of the main contentions urged in these writ petitions is that the judgment of the Division Bench in _**Moan M.Joseph**_ (supra) holds the field and the petitioners are not entitled to seek shifting of the line invoking Section 17 of the Act since the demand is not for shifting the line within any other portion of the said property or to another part thereof, but to a pathway outside the property of the applicants. It is argued that though a different view was taken by the learned Single Judge in _**Gopinathan Nair**_ (supra), while referring to Rule 3 of the Works of Licensees Rules, 2006, the said Rules can have no application as the appropriate Government as defined under Section 2(5) of the Electricity Act, 2003 is the Central Government. Rules have been framed under Sections 67(2) and 176(2)(e) of the Electricity Act, 2003 and it is evident that the Rules have been framed by the Central Government which may not apply to the fact situation. It is argued that Section 180 of the Electricity Act, gives power to ## W.P(C) Nos.990 & 2572/16 ## -:10:- the State Government to make rules in regard to the work of licensees affecting the property of other persons under sub section (2) of Section 67. But in so far as the rules have been framed by the Central Government, it cannot be made applicable to the fact situation. 13. Though such a contention is urged, I do not think that there is any necessity to consider the writ petitions in that angle. There is no dispute about the fact that a licensee under the Electricity Act, 2003 is entitled to draw transmission lines through any property for the purpose of providing power connection to a premises. We are concerned with the provisions of Sections 16 and 17 of the Indian Telegraph Act. Section 16(1) reads as under; _“_ _**16. Exercise of powers conferred by section**_ ## _**10, and disputes as to compensation, in case of property other than that of a local authority.**_ _(1) If the exercise of the powers mentioned in section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.”_ ## W.P(C) Nos.990 & 2572/16 ## -:11:- The power of the District Magistrate is to adjudicate on any dispute emanating from a resistance or obstruction. If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise the said right. ## 14. Section 10(d) of the Act reads as under:- _“10.(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.”_ Section 10 empowers the telegraph authority from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon, any immovable property. There is no dispute about the fact that such powers are available to the licensee under the Electricity Act, 2003. Therefore, if the licensee decides that a line drawn in the property of a particular person is W.P(C) Nos.990 & 2572/16 -:12:- to be shifted to a public pathway or road, or to any other property, it is for the Board to decide whether such shifting is possible and if so, on what conditions. Once the Board takes a decision, and thereafter there is obstruction or resistance as mentioned under Section 16(1), the District Magistrate will have jurisdiction to consider whether such resistance or obstruction is to be removed or not. 15. The present cases are instances where already an electric line has been drawn through the property of the applicants. They wanted it to be shifted to another property or a public road as the case may be on the ground that it causes inconvenience to them. Once such an application is submitted before the licensee, and in the present case, KSEB, it has to take note of the said requirement and ascertain whether shifting of the line is possible. If the shifting of the line is possible, the KSEB can definitely take appropriate action to suit the convenience of the applicants. If any person objects to the same, necessarily, question arises whether the resistance or obstruction is justified or not, in which event, the matter will have to be referred to the W.P(C) Nos.990 & 2572/16 ## -:13:- District Collector under Section 16 of the Act. Though it could be stated that the petitions are considered by the Additional District Magistrate under Section 17 of the Act, still, if the KSEB decides to shift the line at the request of an applicant, it is virtually consideration of a resistance or obstruction as contemplated under Section 16. This situation arises only if the KSEB decides that shifting of the line is permissible. Suppose the KSEB is of the view that shifting of the line is not permissible, there is no requirement to proceed under Section 16 of the Act whereas the applicant will have to proceed under Section 17 of the Act in which event the jurisdictional issue arises. 16. In the present cases on hand, the Board is also agreeable to shift the line as suggested by the applicants and therefore it has to be assumed that power has been exercised by the District Collector under Section 16(1) of the Act. In the said circumstances, I do not find any infirmity in the orders passed. 17. Further, though separate provisions have been made under Sections 176 and 180 empowering the Central Government and the State Government respectively to make rules, in respect W.P(C) Nos.990 & 2572/16 ## -:14:- of works of licensees affecting the property of owner or occupier under sub section (2) of section 67, in so far as the State Government had not made any such Rules, there is no impediment on the part of the Board in applying the Rules promulgated by the Central Government in that regard. The Works of Licensees Rules, 2006 does not provide any such restriction as far as its applicability is concerned. The Rules impose power on the licensee to carry out any works, or place any electric line or other works over or under any land with the prior consent of the owner or occupier of any building or land. In the event any objection is raised by the owner or occupier of the building or land, the licensee is bound to obtain consent from the District Magistrate or the Commissioner of Police or any other officer authorized by the State Government in this behalf for carrying out the works. Therefore, the word “licensee” under Rule 3 cannot be given a limited meaning to indicate that he should be a licensee under an authority constituted by the Central Government. The word “licensee” had been defined under Section 2(39) as meaning “a person who has been granted a licence W.P(C) Nos.990 & 2572/16 -:15:- under Section 14 of the Act”. Therefore, all licensees who have obtained permission under Section 14 is bound by the Works of Licensees Rules, 2006. In the said circumstances, I do not think that the contention urged on behalf of the petitioners regarding application of Works of Licensees Rules, 2006 can be sustained. Writ petitions are dismissed. But the dismissal of these writ petitions shall not preclude the petitioners in WP(C) No. 990/2016 to avail of any other option if it is permitted by the Kerala State Electricity Board, especially in the light of Ext.P5. Sd/- **A.M. SHAFFIQUE, JUDGE** Rp //True Copy// P.S to Judge