High Court of KeralaSingle Judge2015-06-05Writ petition allowed; Ext.P8 quashed; ADM to p...

V. Gopinathan Nair v. Kerala State Electricity Board and others

Case / Petition Number:WP(C).No. 11741 of 2015 (P)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V. Chitambaresh
Judgment Date: 2015-06-05
Court Decision / Holding: Ext.P8 (the ADM’s order) quashed. The ADM is directed to pass fresh orders after hearing, with notice to interested parties, within two months from the receipt of a copy of the judgment. The writ petition is allowed; no costs.
Final Disposition: Writ petition allowed; Ext.P8 quashed; ADM to pass fresh orders with notice within two months.

Parties to the Case

Appellants / Petitioners

V. Gopinathan Nair

Respondents

Kerala State Electricity Board represented by its Secretary
Assistant Executive Engineer, KSEB, Neyyattinkara
Radhakrishnan Nair
Syamala, W/o. Radhakrishnan Nair
Madhusoodanan Nair
Hemalatha
State of Kerala represented by Govt. Pleader, High Court, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. G. Sudheer (Advocate)

Counsels for Respondents

• Sri. Gikku Jacob (Government Pleader)
• Sri. Sajeevkumar K. Gopal, SC, KSEB

Case Synopsis & Summary

V. Gopinathan Nair filed WP(C) 11741/2015 challenging an order of the Additional District Magistrate (ADM) denying permission to shift a post and its electricity line from within the petitioner’s property to a public road adjoining the property. The dispute arose after a tree fell on the overhead line, creating a danger to residents. The petitioner sought shifting to the public road and deposited labour costs, but neighbors objected on traffic grounds. The Kerala Lok Ayukta was involved, and an Advocate Commissioner was deputed; the Advocate Commissioner reported on the road width (about 1.80 meters). The ADM rejected the petition on grounds including lack of Section 17 authorization under the Indian Telegraph Act and absence of a proper basis to permit shifting. The petitioner contends the power to shift lies in Rule 3 of the Works of Licensees Rules, 2006, framed under the Electricity Act, 2003, which allows licensees to carry out works with owner consent, and permits the DM to authorize or order removal/alteration of supports. The court concluded that Rule 3 empowers shifting beyond property boundaries, subject to the provisos, and that Section 17 is not a necessary basis since the Rules under the Electricity Act should prevail. It distinguished earlier Telegraph Act cases but held the Rules should govern. The petition is allowed; Ext.P8 is quashed and the ADM is directed to decide afresh after hearing within two months with notice to interested parties.

Provisions of Law Cited

Electricity Act, 2003 - Sections 67(2) and 176(2)(e)Rule 3 of the Works of Licensees Rules, 2006Section 164 of the Electricity Act, 2003Section 17 of the Indian Telegraph Act, 1885

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the jurisdiction to shift a service line beyond the property boundary lies with the District Magistrate under Rule 3 of the Works of Licensees Rules, 2006, framed under the Electricity Act, 2003. The Rules authorize licensees to lay and alter electric lines with owner consent, and the District Magistrate or police officer may permit or require removal or alteration of supports. The petitioner argues there is no restriction under the Rules on shifting beyond boundaries and that Section 17 of the Indian Telegraph Act is not required to justify the action. The petitioner emphasizes the danger to life from a snapped line and seeks shifting to the adjacent public road, subject to notice and due process. The petitioner also requests quashing Ext.P8 and directing fresh consideration after hearing.

Contentions of Respondents

The KSEB argues that shifting of posts and lines requires lawful permission, and the ADM’s Ext.P8 order reflects this. It relies on Section 17 of the Telegraph Act and the necessity of consent under Rule 3(1) to carry out works, subject to restrictions and potential compensation. It argues that the road’s width and traffic implications must be evaluated by the ADM, with proper input from authorities, and that reliance on Telegraph Act provisions is appropriate where the Rules do not expressly dispense with such restrictions.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Moan M. Joseph v. The Kerala State Electricity Board	2014 (2) KLT 13	Distinguished	Cited in context of Section 17 of the Telegraph Act; the judgment notes these decisions pertain to Telegraph Act provisions and the Rule 3 framework under Electricity Act 2003 should prevail, thereby distinguishing their ratio.
Ali v. The Additional District Magistrate	2013 (4) KLT 428	Distinguished	Same contextual distinction as above; decided under Telegraph Act framework with Rule 3 not being controlling in the same way under Electricity Act 2003.
Narayanan Nair and another v. Kunchikrishnan Nair and others	2009 (2) KHC 941	Distinguished	Case cited to discuss Section 17 constraints; the present court clarifies Rules under Electricity Act take precedence, distinguishing the Telegraph Act-based precedents.

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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 V.CHITAMBARESH FRIDAY, THE 5TH DAY OF JUNE 2015/15TH JYAISHTA, 1937 WP(C).No. 11741 of 2015 (P) ---------------------------- PETITIONER(S): ---------------- V.GOPINATHAN NAIR, AGED 75 YEARS S/O.VALAYUDHAN PILLAI, SHEEJA BHAVAN, PERUMPAZHUTHOOR P.O. NEYYATTINKARA TALUK. BY ADV. SRI.G.SUDHEER RESPONDENT(S): ------------------ 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 001. 2. ASSISTANT EXECUTIVE ENGINEER KSEB, NEYYATTINKARA - 695 121. 3. RADHAKRISHNAN NAIR, SREE BHAVAN, PERUMPAZHUTHOOR PERUMPAZHUTHOOR, P.O., NEYYATTINKARA - 695121. 4. SYAMALA, W/O.RADHAKRISHNAN NAIR SREE BHAVAN, PERUMPAZHUTHOOR P.O. NEYYATTINKARA - 695 121. 5. MADHUSOODANAN NAIR, S/O.VELAPPAN NAIR VASANTHA VILASOM, PERUMPAZHUTHOOR P.O. NEYYATTINAKARA - 695 121. 6. HEMALATHA, VASANTHA VILASOM, PERUMPAZHUTHOOR P.O. NEYYATTINKARA - 695 121. 7. STATE OF KERALA, REPRESENTED BY GOVT. PLEADER HIGH COURT, ERNAKULAM - 682 031. R BY GOVERNMENT PLEADER SRI.GIKKU JACOB. R BY SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.11741 OF 2015 PETITIONER'S EXTS: - EXT.P1 COPY OF A PHOTOGRAPH PICTURISING THE INCIDENT ON 12.6.2010 EXT.P2 COPY OF CASH RECEIPT SHOWING PAYMENT OF WORK COST FOR POST SHIFTING. - EXT.P3 COPY OF THE CERTIFICATE DT. 5/7/2010 ISSUED BY NEYYATTINKARA MUNICIPALITY - EXT.P4 COPY OF COMMISSION REPORT EXT.P5 COPY OF ORDER IN COMPLAINT NO.1632/2010 DATED 23/12/2013 OF HON'BLE LOK AYUKTHA. - EXT.P6 COPY OF THE COUNTER FILED BY THE SECOND RESPONDENT. EXT.P7 COPY OF THE COUNTER FILED BY PETITIONER BEFORE DISTRICT MAGISTRATE IN THE PROCEEDINGS NO.SL.88758/13 - EXT.P8 COPY OF THE ORDER IN THE PROCEEDINGS OF DISTRICT MAGISTRATE AS S1-88753/2013 DT. 18/11/14. //TRUE COPY// P.S. TO JUDGE. 'C.R.' **==> picture [301 x 69] intentionally omitted <==** **==> picture [136 x 15] intentionally omitted <==** Has not the District Magistrate the jurisdiction to direct the shifting of an electricity supply line beyond the boundaries of a property ? 2. A tree fell on the electricity supply line drawn across the property of the petitioner snapping it thus endangering human lives. The petitioner thought it wise to have the post as well as the electricity supply line shifted outside his property. The petitioner made a motion in that regard pointing out the adjacent public road to which it could be shifted. The officials of the Kerala State Electricity Board ['KSEB' for short] tentatively approved the spot. The petitioner was directed to deposit ` 2311/- towards labour charges which was readily done. The neighbours of the petitioner however obstructed the work alleging that vehicular traffic would be impeded. 3. This lead to the petitioner filing a complaint before the Kerala Lok Ayuktha which even deputed an Advocate Commissioner. The Advocate Commissioner reported that the public road pointed out WP(C) No. 11741/2015 2 by the petitioner is of varying width. The report indicated that the width of the road adjacent to the house of the petitioner is 1.80 meters. The KSEB in the meanwhile moved the Additional District Magistrate for permission to shift. The Kerala Lok Ayuktha thereupon closed the complaint leaving the Additional District Magistrate to adjudicate. 4. The petitioner filed a counter statement before the Additional District Magistrate reiterating the need for shifting. The petitioner asserted that a shifting of the post and electricity supply line is imminent in the circumstances. The Additional District Magistrate eventually rejected the petition moved by the KSEB by Ext.P8 order. One of the reasons stated is that the Assistant Executive Engineer was not present for hearing. The other reason stated is that no permission could be granted under Section 17 of the Indian Telegraph Act, 1885. Needless to say that the powers of the Telegraph Authority can be exercised by the KSEB by virtue of Section 164 of the Electricity Act, 2003. The petitioner challenges Ext.P8 order as arbitrary and illegal and seeks permission to shift. 5. I heard Mr.G.Sudheer (Karakonam), WP(C) No. 11741/2015 3 Advocate on behalf of the petitioner, Mr.Sajeev Kumar K Gopal, Advocate on behalf of the KSEB and Mr.Gikku Jacob, Government Pleader. 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 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 writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State WP(C) No. 11741/2015 4 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 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 subrule(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 subrule(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 (KSEB) 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 WP(C) No. 11741/2015 5 carrying out the works including removal or alteration of support, stay or strut. The power can be exercised to shift the post and 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. 8. I am conscious of the following decisions which delineates the power of the District Magistrate under Section 17 of the Indian Telegraph Act, 1885. i) Moan M.Joseph v. The Kerala State Electricity Board [2014 (2) KLT 13] ii) Ali v. The Additional District Magistrate [2013 (4) KLT 428] iii) Narayanan Nair and another v. Kunchikrishnan Nair and others [2009 (2) KHC 941] The above decisions were rendered in the context of Section 17 of the Indian Telegraph Act, 1885 and with reference to Rule 3 of the Rules. There is no necessity to call in aid Section 17 of the Indian Telegraph Act, 1885 in the wake of the Rules. The WP(C) No. 11741/2015 6 Rules having been framed under the Electricity Act, 2003 itself should undoubtedly gain precedence. 9. All that the petitioner wants is to shift the post and the electricity supply line to the public road flowing adjacent. Whether the erection of a post on the road would impede the vehicular or pedestrian traffic is a different issue. That is a matter to be decided by the Additional District Magistrate on the basis of the relevant inputs. I am also inclined to grant an opportunity to the parties to place their contentions before the authority. 10. Ext.P8 order declining the request to shift the post and electricity supply line beyond the boundaries of the property is quashed. The Additional District Magistrate is directed to pass orders anew with notice to the interested parties. The needful shall be done within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No costs. Sd/V.CHITAMBARESH, Judge. nj.