High Court of KeralaSingle Judge2019-08-19Appeal Allowed; Decree for removal of line; cos...

Sreekumar and others v. Kerala State Electricity Board and others

Case / Petition Number:RSA.No.1027 OF 2010

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2019-08-19
Court Decision / Holding: The appeal is allowed with costs. The suit is decreed directing defendants 1 and 2 to remove the overhead electric line drawn across the plaintiff’s property within one month at their risk and costs. The rough sketch prepared by the commissioner will form part of the decree.
Final Disposition: Appeal Allowed; Decree for removal of line; costs to be borne by KSEB defendants; line to be removed within one month; commissioner’s sketch to form part of the decree.

Parties to the Case

Appellants / Petitioners

Sreekumar, S/o.Sathyabhama
Kunjunni Chakrapani, S/o.Kunjunni
Lakshmi Sathyabhama, D/o.Lakshmy
Lakshmi Soudamini, D/o.Lakshmy
Ramachandran, S/o.Kunjunni

Respondents

The Kerala State Electricity Board, Vaidyudhibhav... Pattom, Thiruvananthapuram (represented by its Secretary)
The Assistant Executive Engineer, Electrical Major North Section, KSEB, Alappuzha
Rajendran, S/o.Ayyappan
Padmini Gopalakrishnan, W/o.Gopalakrishnan

Legal Representation & Advocates

Counsels for Petitioners

• Smt. C.G. Bindu
• Smt. Ajitha C.G.

Counsels for Respondents

• Sri. Raju Joseph (Sr.)
• Sri. Raju Joseph (Sr.)
• Sri. Asok M. Cheriyan, SC, KSEB
• Sri. K.T. Palouse, SC, KSEB
• Sri. K.N. Venugopala Panicker

Case Synopsis & Summary

This Regular Second Appeal before the High Court of Kerala at Ernakulam concerns a suit for mandatory injunction by the plaintiffs to compel the removal of an overhead electric line drawn across their private property to reach the residence of defendants 3 and 4. The trial court and the first appellate court dismissed the suit, prompting the plaintiffs to appeal. The defendants argued that the line was laid to provide electricity to the third and fourth defendants and that laying such lines across private property lies within the authority of the KSEB and does not require the consent of the landowner. The core legal questions addressed were whether there was justification for denying a decree to remove the crossing line, whether the KSEB possesses authority to draw electric lines through others’ property without invoking Section 12 of the Indian Electricity Act or Section 10 of the Indian Telegraph Act, and whether the stand that lines can be drawn without consent or statutory compliance is legally tenable. The court repeatedly cites Banarsi Das v. Cane Commissioner (AIR 1963 SC 1417) and Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board (1970 KLT 872) to emphasize that private property cannot be traversed without proper statutory authorization or owner’s consent. It notes that the 2003 Act likewise contains no provision empowering such action. The line’s drawing is deemed unauthorized and constitutive of perpetuating illegality. The appellate court is allowed to remit the matter with costs; the appeal is allowed and the suit decreed with an order to remove the line within one month, at the defendants’ risk and costs, the commissioner’s sketch forming part of the decree.

Provisions of Law Cited

Section 12 of Indian Electricity ActSection 10 of Indian Telegraph ActThe Electricity Act, 2003

Legal Doctrines & Maxims

Consent of property owner is a prerequisite for laying electric lines unless statutory authorization exists
Public authorities must act within the powers conferred by statute
Perpetuation of illegality must be avoided
Laying lines without compliance with statutory provisions or consent is unlawful

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that a private property owner’s rights cannot be overridden by the KSEB merely to supply electricity to others. They assert that no consent was obtained and that the line traverses private land; hence it cannot be justified under any provision of law without proper statutory procedures (Section 12 of the Indian Electricity Act or Section 10 of the Indian Telegraph Act). They insist the court must direct removal to protect property rights and prevent perpetuation of illegality, with costs against the erring authorities.

Contentions of Respondents

The respondents argue that the line was laid to provide electrical connection to defendants 3 and 4 and thus falls within the authority of the KSEB. They claim no consent from the plaintiff is required where action is statutory and necessary, and that the line’s crossing was a permissible exercise of KSEB’s powers, even if it crosses private property. They rely on existing statutory powers and argue that the 2003 Act does not expressly bar such action when necessary for service provision.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Banarsi Das v. Cane Commissioner, Uttar Pradesh and another	AIR 1963 SC 1417	Positive	Apex Court authority cited to support that statutory provisions or owner consent are necessary for public utilities to act on private property; the court follows this principle.
Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board	1970 KLT 872	Positive	Full Bench followed, reinforcing the necessity of statutory authorization or owner consent before crossing private land with utility lines.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **RSA.No.1027 OF 2010** **AGAINST THE JUDGMENT & DECREE DATED 27-02-2010 IN AS 21/2008 OF THE SUB COURT,ALAPPUZHA** **AGAINST THE JUDGMENT & DECREE DATED 31-10-2007 IN OS 242/2006 OF THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** - **1 SREEKUMAR, S/O.SATHYABHAMA, RESIDING AT JAGARIYA PARAMBU (KANNIMEL PURAYIDOM), KAITHAVANA MURI, PAZHAVEEDU VILLAGE, ALAPPUZHA.** - **2 KUNJUNNI CHACKRAPANI, S/O.KUNJUNNI, DO. DO.** - **3 LAKSHMI SATHYABHAMA, D/O.LAKSHMY, DO. DO.** - **4 LAKSHMI SOUDAMINI, DO. DO.** - **5 RAMACHANDRAN, S/O.KUNJUNNI DO. DO. BY ADVS. SMT.C.G.BINDU SMT.AJITHA C.G.** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 THE KERALA STATE ELECTRICITY BOARD, VAIDYUDHIBHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** - **2 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR NORTH SECTION, K.S.E.BOARD, ALAPPUZHA.** - **3 RAJENDRAN, S/O.AYYAPPAN,** **RSA.No.1027 OF 2010 2** **RESIDING AT HOUSE NO.30/444, KANNIMEL PURAYIDOM, KAITHAVANA MURI, PAZHAVEEDU VILLAGE, ALAPPUZHA.** **4 PADMINI GOPALAKRISHNAN, W/O.GOPALAKRISHNAN, RESIDING AT SHANKARASSERIL VELIYIL, KAITHAVANA MURI, SANATHANAPURAM WARD, PAZHAVEEDU VILLAGE, AMBALAPPUZHA TALUK.** **R1 BY ADV. SRI.RAJU JOSEPH (SR.) R2 BY ADV. SRI.RAJU JOSEPH SR. R1 ,R2 BY SRI. ASOK M.CHERIYAN, SC, KSEB R1,R2 BY SRI.K.T.PAULOSE, SC, KSEB R4 BY ADV. SRI.K.N.VENUGOPALA PANICKER** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No.1027 OF 2010 3** ## **JUDGMENT** A suit for mandatory injunction against the first and second defendants to remove an overhead electric line drawn across the property of the plaintiff ended in dismissal in both the trial court and the first appellate court, against which this appeal by the plaintiff. 2. The electric line was drawn across the property of plaintiff to the house of third and fourth defendants. The first and second defendants contended that they have drawn the electric line in order to provide electric connection to the house of third and fourth defendants, for which there is no need or necessity to obtain the consent of the plaintiff. It is within their authority and power to draw electric line through the property of **RSA.No.1027 OF 2010 4** others. 3. The questions came up for consideration are: 1) Is there any justification for the first appellate court and the trial court not to grant a decree to remove overhead crossing line through the property of plaintiff ? 2) Is it within the authority KSEB to draw electric line crossing over the property of others without exhausting Section 12 of Indian Electricity Act or Section 10 of Indian Telegraph Act ? Whether the stand taken by the KSEB that they can draw electric line through any property without the consent of property owner and without resorting to Section 12 of Indian **RSA.No.1027 OF 2010 5** Electricity Act or Section 10 of Indian Telegraph Act is legally acceptable ? 4. The legal position was very much settled by the Apex Court in **Banarsi Das v. Cane Commissioner, Uttar Pradesh and another ( AIR 1963 SC 1417).** It was followed by a Full Bench of this Court in **Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board ( 1970 KLT 872).** It is not within the authority of KSEB to draw electric line through a private property without resorting to either Section 12 of Indian Electricity Act or Section 10 of the Indian Telegraph Act in the absence of written consent. In the instant case electric line was drawn after the commencement of 2003 Act, wherein also there is no provision empowering the KSEB to draw any electric line through private property without ## **RSA.No.1027 OF 2010 6** following the provisions. Admittedly no such provision was complied with by the defendants 1 and 2. The commissioner who visited the property noted the electric line which was drawn across the property of plaintiff. It is not through any way provided to the house of third and fourth defendants. The unauthorized drawing of electric line across the property of plaintiff to the house of third and fourth defendants cannot be sustained. If it is permitted to continue, it would amount to perpetuating an illegality. Both the trial court and the first appellate court did not understand the legal issues involved in the case and that has resulted in miscarriage of justice. 5. The drawing of overhead electric line across the property of plaintiff and the defence set up by the defendants 1 and 2 would itself show ## **RSA.No.1027 OF 2010 7** the high handed act and invasion upon the right of plaintiff and their property for a long period of 13 years. But no claim for compensation raised by the plaintiff. As such this court is not in a position to grant any compensation to the plaintiff for the loss and sufferings occasioned due to the high handed act of defendants 1 and 2. It cannot be tolerated even for a moment. The cost of drawing of unauthorized overhead electric line across the property of plaintiff and the cost of its removal shall not be put on the shoulder of the customers or the KSEB. It should be recovered from the erring officers of the KSEB who is responsible for drawing of the electric line across the property of plaintiff. The appeal is allowed with costs of appellant throughout from defendants 1 and 2. The judgment and decree of both the courts below are set aside. ## **RSA.No.1027 OF 2010 8** The suit is decreed directing defendants 1 and 2 to remove the overhead electric line drawn across the property of plaintiff within one month at their risk and costs. The rough sketch prepared by the commissioner for that purpose will form part of the decree. Sd/- **P.SOMARAJAN, JUDGE** pm // TRUE COPY // PA TO JUDGE