Isson John Kaithakottil v. Assistant Engineer Electrical Section, KSEB Ltd.; Assistant Executive Engineer Electrical Sub Division, Kerala State Electricity Board Ltd.; Joseph; John K. Joseph; Additional District Magistrate

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 19TH DAY OF APRIL 2016/30TH CHAITHRA, 1938** ## **WP(C).NO. 36705 OF 2015 (K)** **----------------------------** ## **PETITIONER(S): -------------** **ISSON JOHN KAITHAKOTTIL HOUSE, CHETHICODE PO, ARAKKUNNAM, ERNAKULAM DT. 682315** **BY ADVS. SRI.C.K.KARUNAKARAN SRI.JOPHY POTHEN KANDANKARY** **RESPONDENT(S):** - **--------------** **1. ASSISTANT ENGINEER ELECTRICAL SECTION, KSEB LTD., ARAKUNNAM, ERNAKULAM DT. 682315** **2. ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION,** **KERALA STATE ELECTRICITY BOARD LTD., CHOTTANIKKARA, ERNAKULAM DT. 682312** **3. JOSEPH** **KANAVELIYIL HOUSE, CHETHICODE PO, ARAKKUNNAM, ERNAKULAM DT. 682315** **4. JOHN K.JOSEPH KANAVELIYIL HOUSE, CHETHICODE PO, ARAKKUNNAM, ERNAKULAM DT. 682315** **5. ADDITIONAL DISTRICT MAGISTRATE** **CIVIL STATION, KAKKANAD, ERNAKULAM 682030** **R1 & 2 BY ADV. SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB R3 BY ADV. SRI.K.JOSE KURIAKOSE R3 BY ADV. SRI.S.RENJITH BY GOVERNMENT PLEADER SRI.R.RENJITH BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.04.2016, THE COURT ON 19.04.2016 DELIVERED THE FOLLOWING:** ## **WP(C).NO. 36705 OF 2015 (K)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1:PHOTOGRAPHS SHOWING PETITIONER'S LAND AND THE ELECTRIC LINE.** **P2:TRUE COPY OF ELECTRICITY BILL FOR CONSUMER NO.15536 UNDER LT. 5A TARIFF (AGRICULTURE)** **P3:TRUE COPY OF PETITIONER'S BANK STATEMENT SHOWING CREDIT FROM KRISHI BHAVAN** **P4:TRUE COPY OF 1ST RESPONDENT LETTER DATED 21.03.2015** **P5:TRUE COPY OF PETITIONER'S LETTER DATED 25.03.2015** **P6:TRUE COPY OF 1ST RESPONDENT'S LETTER DATED 18.05.2015** **P7:TRUE COPY OF PETITIONER'S LETTER DATED 23.05.2015** **P8:TRUE COPY OF 2ND RESPONDENT'S PETITION UNDER** **SECTION 16 OF TELEGRAPH ACT, ALONG WITH THE ROUTE SKETCH** **P9:TRUE COPY OF PETITIONER'S SUBMISSION BEFORE THE 5TH RESPONDENT ADM,** **P10-:TRUE COPY OF JUDGMENT DATED 11.09.2015 IN WPC.NO.27454/2015** **P11:TRUE COPY OF ORDER DATED 27.10.2015 OF 5TH RESPONDENT ADM** **P12:TRUE COPY OF BUILDING PLAN AND THE LOCATION SKETCH** **P13:TRUE COPY OF PANCHAYATH LETTER DATED 23.11.2015** **RESPONDENT(S)' EXHIBITS:NIL -----------------------** **//TRUE COPY//** **P.S TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. -------------------------------** ## **W.P.(C).NO.36705 OF 2015 (K) ----------------------------------Dated this the 19[th] day of April, 2016** ## **J U D G M E N T** In this writ petition, the petitioner challenges Ext.P11 order of the 5[th] respondent whereby the said respondent has found that a request of the petitioner, for shifting an electric line running through his property, cannot be considered in accordance with the provisions of the Indian Telegraph Act since the petition itself was not maintainable at the instance of the petitioner. The brief facts that are necessary for a disposal of the writ petition are as follows: The petitioner and the 3[rd] and 4[th] respondents are neighbours. It would appear that many years ago, the petitioner’s father had permitted an electric line to be drawn through his property for the purposes of providing an electric connection to his then neighbour, the 3[rd] respondent herein. This required an electric post to be installed in the premises of the petitioner, which was also done. The electric line for the neighbour was drawn through the petitioner’s property because there was no alternate route available then for drawing the line and the route through the petitioner’s property **W.P.(C).No.36705/2015** **2** appeared to be the most feasible one. In later years, the same route was also used for providing an electric connection to the 4[th] respondent, the son of the 3[rd] respondent and himself another neighbour, and while providing this latter connection, the existing electric post in the petitioner’s property was replaced with a new one. 2. It is the case of the petitioner in the writ petition that his son and family, who have returned from abroad, have now expressed a desire to construct a residential house in the property so as to stay close to the petitioner in his old age. An application submitted by the petitioner, for obtaining a building permit, was, however, rejected by the local authority citing the existence of the electric line over the property. This prompted the petitioner to submit a request to the 1[st] respondent for shifting the existing electric line to the nearby Panchayath road that had subsequently come up in front of their property. It was pointed out, that an electric post was also located adjacent to the houses of the 3[rd] and 4[th] respondents from which the 1[st] respondent could draw a new line for the purposes of providing electric connection to the 3[rd] and 4[th] respondents. Acting **W.P.(C).No.36705/2015** **3** on the request of the petitioner, the 1[st] respondent intimated the petitioner of the expenses that would be required for effecting the shifting, through Ext.P4 letter, and the petitioner agreed to bear the said expenses by Ext.P5 letter. It is significant to note that, in the meanwhile, the 3[rd] and 4[th] respondents also submitted an application before the 1[st] respondent requesting for a shifting of the line to the new route. The 1[st] respondent, therefore, by Ext.P6 letter sought the consent of the petitioner for removing the existing electric post and for shifting the line to the new route. The petitioner readily gave his consent and, in Ext.P7 letter sent to the 1[st] respondent, even requested for an expeditious action from the 1[st] respondent in that regard. 3. It would appear that there was some difference of opinion between the 3[rd] and 4[th] respondents, on the one hand, and the petitioner on the other for, the 3[rd] and 4[th] respondents objected to the drawing of a line through the new route. Taking note of the objection of the 3[rd] and 4[th] respondents, the 2[nd] respondent filed a petition under Section 16(1) of the Indian Telegraph Act read with **W.P.(C).No.36705/2015** **4** Section 164 of the Electricity Act, 2003, before the District Collector, who forwarded the same to the 5[th] respondent. The 5[th] respondent, thereafter, after hearing the parties, passed Ext.P11 order, which is impugned in this writ petition. 4. In a counter affidavit filed on behalf of the 3[rd] respondent, the said respondent seeks to justify the decision of the 5[th] respondent on the ground that the 5[th] respondent does not have the power to pass an order under Section 17 of the Indian Telegraph Act, directing the shifting the electric line to premises that are beyond the boundaries of the petitioner’s property. He places reliance on the decisions of this court in **Ali v. Additional District Magistrate, Palakkad and Others - [2013 (4) KLT 428]** and the judgment dated 13.02.2014 in W.A No.362 of 2013. 5. In the counter affidavit filed on behalf of respondents 1 and 2, it is stated that the line can be shifted from the property of the petitioner and connection can be given to the 4[th] respondent without shifting his meter board. The details of the alignment as also the costs **W.P.(C).No.36705/2015** **5** involved in carrying out the shifting works are also detailed in the counter affidavit. 6. I have heard Sri. Karunakaran C.K, the learned counsel for the petitioner, Sri. Sajeev Kumar K. Gopal, the learned standing counsel for the respondent Board and Sri. P. Chandrasekhar, learned counsel for the 3[rd] and 4[th] respondents. 7. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that in Ext.P11 order, the 5[th] respondent has examined only the scope of his jurisdiction under Sections 16 and 17 of the Indian Telegraph Act while finding that the application of the Board under the said provisions cannot be entertained. It is relevant to note, in this connection, that in the decision of this court in **Gopinathan Nair v Kerala State Electricity Board - [2015 (2) KLT 947]** , this court has, while distinguishing the decisions referred above, taken note of the provisions of Rule 3 of the Works of Licensees Rules, 2006 and found that the District Magistrate, while acting on an application filed by the respondent Board, can consider the shifting of an electric line **W.P.(C).No.36705/2015** **6** to beyond the premises of the property in which it is currently situated. In the instant case, I find that the 5[th] respondent has not examined the matter in the light of the powers available under the aforementioned statutory Rules and further, the 5[th] respondent appears to have lost sight of the fact that the request of the petitioner for shifting the electric line to the new location had found favour with the respondent Board also. As a matter of fact, even the 3[rd] and 4[th] respondents had initially requested for shifting of the electric line although, for reasons best known to them, they resiled from the said stand later on. At any rate, I am of the view that the request of the petitioner, that found favour with the respondent board, and under circumstances where the petitioner had undertaken to bear the costs incidental to the shifting works, should have been considered on merits by the 5[th] respondent. I also find that the 3[rd] and 4[th] respondents cannot legally insist on getting an electric connection to their premises, through any particular route, more so when it is not in dispute that they will not be called upon to effect any structural alteration with regard to their metering equipment or incur any costs associated with the re-routing. Resultantly, I quash Ext.P11 order and **W.P.(C).No.36705/2015** **7** direct the 5[th] respondent to examine the matter afresh, in the light of the observations in this judgment and after hearing the affected parties, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed as above. **A.K.JAYASANKARAN NAMBIAR JUDGE** prp/