Rajan J Mundakal v. Kerala State Electricity Board Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 27TH DAY OF JUNE 2018 / 6TH ASHADHA, 1940** **WP(C).No. 17799 of 2018** ## **PETITIONER(S)** **-------------** ## **RAJAN J MUNDAKAL,** **DIRECTOR, MARYMATHA RESORTS & ESTATES (P) LTD., DOOR NO. 42/2743A, LAKE VIEW, VENNALA PARA ROAD, VENNALA P.O., COCHIN-682 028.** **BY ADV.SRI.P.SHANES METHAR** **RESPONDENT(S):** **-------------** **1. KERALA STATE ELECTRICITY BOARD LTD, REP. BY ITS SECRETARY, VIDYUTHIBHAVAN, PATTOM,THIRUVANANTHAPURAM-695 001.** **2. THE CHIEF ENGINEER(TRANSMISSION), KERALA STATE ELECTRICITY BOARD LTD., VIDYUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM-695 001.** **3. THE ASSISTANT ENGINEER, O/O. ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., SUB STATION COMPOUND, MANNAM P.O., NORTH PARUR, ERNAKULAM-683 513.** **4. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE ERNAKULAM.** **R1 BY SRI.P.A.AHAMED, SC R2 & R3 BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI R4 BY GOVERNMENT PLEADER SRI.SUNIL NATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 17799 of 2018 (Y) --------------------------** ## **APPENDIX** - **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 21.05.2018 EXHIBIT P2 TRUE COPY OF THE ORIGINAL ALIGNMENT/ROUTE MANNAM-CHERAI 110 KV LINE ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE CHANGED ALIGNMENT/ROUTE OF MANNAM-CHERAI 110 KV LINE ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 03.05.2018 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LETTER NO. AE/TCS/CJERAI/18-18/1 DATED 06.05.2018 OF THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LETTER NO. DB46B/2018-19/65 DATED 10.05.2018 OF THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NEW ALIGNMENT TO MANNAM-CHERAI 110 KV LINE ISSUED BY THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 21.05.2018.** **RESPONDENT(S)' EXHIBITS ------------------------** **EXHIBIT R3(A) : TRUE COPY OF THE NOTIFICATION NO.TC-1/S1/PUBLIC/2001/1 (GAZETTE DATED 9-1-2001) EXHIBIT R3(B) TRUE COPY OF THE ORDER NO.K.DIS/13597/2011/MS DATED 28-4-2017 OF THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM.** **EXHIBIT R3(C) : TRUE COPY OF THE DATA BANK WITH RESPECT TO THE PETITIONER'S PROPERTY ISSUED BY THE EZHIKKARA GRAMA PANCHAYATH DATED NIL.** **EXHIBIT R3(D) : TRUE COPY OF THE GOOGLE EARTH MAP PERTAINING TO PETITIONER AND NEARBY PROPERTIES.** **/TRUE COPY/** **PS TO JUDGE** **TS 29.06.2018** **DEVAN RAMACHANDRAN, J. ----------------------------------------------W.P.(C).No.17799 of 2018 ----------------------------------------------Dated this the 27[th] day of June, 2018** ## **J U D G M E N T** The petitioner who claims to be the owner of a certain extent of land in Sy.No.80/1-14, 80/1-13 and 80/18 of Azhikkara Village, has approached this Court voicing the apprehension that the respondents are drawing a 110 KV Electric line from Mannam to Cherai in violation of the technically approved alignment and his primary grievance is that, by doing so his property would bifurcate, since the towers are now sought to be installed in the middle of his property. 2. I notice that a counter affidavit has been filed by respondents 2 and 3, wherein, these allegations have been specifically refuted. It is stated unequivocally therein that the towers for the line are sought to be W.P.(C).No.17799 of 2018 : 2 : installed, not through the middle of the petitioner's property, but in proximity to its boundary, as far as it is practicable. It is also stated by the K.S.E.B. that the property of the petitioner is a water lodged area, akin to a wetland and therefore, that the prejudice now alleged by the petitioner is completely untenable. 3. The learned counsel for the petitioner submits that the afore recorded apprehension has been voiced by the petitioner because he has recently noticed that a deviation has been made in the approved alignment by the K.S.E.B., while installing the towers. According to him, Ext.P7 sketch would show that the original technically approved alignment for the line is sought to be altered to help certain other persons. As per him, his client was, therefore, constrained to make Ext.P8 application before the Assistant Engineer of the K.S.E.B., for being referred to the Additional District Magistrate to consider the question whether such modifications have been made. 4. Even though I hear Sri.P.Shanes Methar, W.P.(C).No.17799 of 2018 : 3 : learned counsel for the petitioner as above, the fact remains that the legal issues involved in cases like this have already been considered by the Hon'ble Supreme Court in **Power Grid Corporation of India Limited** v. **Century Textiles and Industries Limited and Others** ((2017) 5 SCC 143). The questions as to the jurisdiction of the various authorities under the Electricity Act, 2003 as well as Rules 3 and 10 of the Works of Licensees Rules, 2006 was considered in extenso by their Lordships therein and the declaration on law in these matters is available in paragraphs 21 and 23 of the said judgment. Since a resolution of the issues in this case will turn on the declarations of law in the afore paragraphs of the judgment, I deem it appropriate to extract the same as under: **21.** It is not in dispute that in exercise of powers under the aforesaid provision, the appropriate Government has conferred the powers of telegraph authority vide Notification dated 24-122003 exercisable under the Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central transmission utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central transmission utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This W.P.(C).No.17799 of 2018 : 4 : coupled with the fact that Power Gird is treated as authority under the Telegraph Act, 1885, it acquires all such powers which are vested in a telegraph authority under the provisions of the Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the wellbeing/progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme of the Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines. **23.** Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. 5. On a reading of the afore view of the Hon'ble Supreme Court, it becomes ineluctable that this Court is divested of any jurisdiction in considering the factual W.P.(C).No.17799 of 2018 : 5 : disputations as to whether the technically approved line stands deviated, since the Hon'ble Supreme Court has said, leaving no reason for doubt, that the only obligation on the telegraph authorities is to pay full compensation to all persons interested, for any damage sustained by them. 6. That apart, I notice the specific submission of Sri.K.M.Sathyanatha Menon, the learned Standing Counsel for the K.S.E.B. that the line is being drawn with a 60.5 meters vertical height and that no conceivable damage can ever be even suspected when the line is drawn with provision for such a large height. That apart, as I have already indicated above, the K.S.E.B. now takes the stand that the electric towers will be installed, as far as possible, only near the boundary line of the petitioner's property and not through its middle, as has been apprehended by the petitioner. 7. In such view of the matter and being guided by the binding precedent of the Hon'ble Supreme Court in **Power Grid Corporation of India Limited** (supra), I W.P.(C).No.17799 of 2018 : 6 : order this writ petition, recording the submissions made on behalf of the K.S.E.B. as afore and directing them to continue to construct the towers to install the electric line strictly in accordance with the technically approved alignment, as has been already sanctioned by the Additional District Magistrate, a copy of which has been placed on record by the K.S.E.B. as Ext.R3(b). This writ petition is thus ordered. Sd/- **DEVAN RAMACHANDRAN JUDGE.** Bb/28/6/2018 _[True copy]_ _P.A to Judge_ W.P.(C).No.17799 of 2018 : 7 : The figure **"60.5"** appearing in the 6[th] paragraph of the judgment dated 27/06/2018 in W.P(C) No.17799/2018 is corrected and substituted as **“16.5”** as per order dated 08/08/2018 in I.A.No.13544/2018 in W.P(C)No.17799/2018. Sd/Registrar (Judicial)