Varghese Paul v. Additional District Magistrate and Deputy Collector (General), Kottayam; Kerala State Electricity Board; Sunny Karottu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935** ## **WP(C).No. 24277 of 2013 (H)** **----------------------------------------** ## **PETITIONER:** - **-------------------** ## **VARGHESE PAUL, MANAGING TRUSTEE, MANOHAR HILL CHARITABLE TRUST, DEVAGIRI P.O., KANGAZHA, KOTTAYAM.** **BY ADVS.SRI.THOMAS T.VARGHESE, SMT.ACHU SUBHA ABRAHAM, SMT.N.ASWATHY.** ## **RESPONDENTS:** **-----------------------** **1. THE ADDITIONAL DISTRICT MAGISTRATE AND DEPUTY COLLECTOR (GENERAL), KOTTAYAM-686 002.** **2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, PONKUNNAM, KOTTAYAM-686 506.** **3. SUNNY KAROTTU, DEVAGIRI, KANGAZHA P.O., KOTTAYAM-686 555.** - **R1 BY GOVERNMENT PLEADER SRI. M.A. ABDUL SHUKOOR, R2 BY SRI. SAJEEV KUMAR K. GOPAL,S.C,K.S.E.B, R3 BY ADVS.SRI.NOEL JOSEPH, SMT.MERIL MUTHU P.JOHN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.24277/2013-H:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 : TRUE COPY OF THE PLAINT FILED IN O.S.NO. 160/2012 OF THE MUNSIFF'S COURT, CHANGANACHERRY, DT.3-5-2012.** **EXHIBIT P2 : TRUE COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.NO. 160/2012 OF THE MUNSIFF'S COURT, CHANGANACHERRY DT. 7-5-2012.** **EXHIBIT P3 : TRUE COPY OF THE REPLY GIVEN FROM THE OFFICE OF THE R2 UNDER THE RIGHT TO INFORMATION ACT DT.23-9-2013.** **EXHIBIT P4 : TRUE COPY OF THE APPLICATION FILED BY R2 BEFORE THE R1 DT.27-3-2013.** **EXHIBIT P5 : TRUE COPY OF THE ORDER NO.19729/13/H6 PASSED BY R1 DT.20-8-2013.** ## **RESPONDENTS' EXHIBITS:** **EXT.R3.A: COPY OF THE RECEIPT NO.0001723 DTD. 02/09/2013. EXT.R3.B: COPY OF THE RECEIPT NO.0001724 DTD. 02/09/2013. EXT.R3.C: COPY OF THE RECEIPT NO.0041527 DTD. 23/09/2013. EXT.R3.D: COPY OF THE RECEIPT NO.0041528 DTD. 23/09/2013.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## C.K. ABDUL REHIM, J. -----------------------------------W.P.(C). No. 24277 of 2013 --------------------------------------------------Dated this the 4[th] day of December, 2013 ## JUDGMENT Challenge in this writ petition is against Ext.P5 order issued by the 1[st] respondent. Proceedings before the 1[st] respondent was initiated on the basis of a petition filed by the 2[nd] respondent under Section 16 (1) of the Indian Telegraph Act, seeking to the remove objection raised by the petitioner herein against shifting of an LT post situated in the middle of a narrow road. The 1[st] respondent obtained a report from the Village Officer, Nedumkunnam wherein it is mentioned that shifting of the post will not cause any inconvenience to the petitioner. Based on such report the 1[st] respondent ordered that, in exercise of power vested under Section 17(2) of the Indian Telegraph Act, sanction is accorded to shift the LT post to the side of the road in question. 2. The petitioner is a public trust which owns 9 Acres of property comprised in re-survey No.227/1 of Nedumkunnam Village, in which a Hospital and other educational institutions are functioning. According to the petitioner, there exist a pathway having 4 feet width 2 and 75 feet length through the said property. Some persons including the 3[rd] respondent requested for widening of the said pathway, for which the petitioner was not amenable. Apprehending attempts of tresspass and forceful widening of the pathway, the petitioner had instituted a suit before the Munsiff Court, Chenganacherry as O.S. No.160/2012. Ext.P1 is the copy of the plaint in the said suit and Ext.P2 is the copy of the report of the Advocate Commissioner. It is alleged that the 3[rd] respondent and his men had trespassed into the property of the petitioner and forcefully widened the pathway, during pendency of the civil suit, for which a criminal case has already been registered, as Crime No.336/2012 of Karukachal Police Station. It is further stated that the Munsiff Court had ordered the parties to maintain status quo, and the said order is still in force. It is also mentioned that the 3[rd] respondent and others have illegally shifted the electric post situated in the pathway, but it was restored on the basis that the authorities of the KSE Board had submitted complaints before the Police authorities. 3. According to the petitioner, the 3[rd] respondent had approached the 2[nd] respondent seeking shifting of the electrical post to the newly widened portion, which is the property belonging to the 3 petitioner. Such a request for shifting of the electric post could not have been permitted by the 2[nd] respondent. But the 2[nd] respondent had approached the 1[st] respondent invoking Section 16(1). The impugned order was issued by the 1[st] respondent in a totally illegal and irregular manner, without considering any of the objections raised by the petitioner. 4. Regarding the factual aspects alleged with respect to forceful widening and the dispute with respect to right over the pathway cannot be adjudicated in this writ petition. All such dispute is to be resolved by the competent civil court, where the matter is now pending. It is evident from Ext.P4 petition submitted by the 2[nd] respondent before the 1[st] respondent that, the request for shifting of the LT post was received from the 3[rd] respondent. But the 2[nd] respondent has not considered the said application on merits, nor a decision was taken permitting such shifting. Going by provisions contained in Section 17(1) of the Indian Telegraph Act, shifting of a telegraphic line or post can be sought for by any person, only if the line or the post is placed under, over, along, across or upon any property which the said person desires to deal with in such a manner as to render it necessary or convenient. The request should be to shift 4 such line or post to another part thereof or to a higher or lower level or altered in form. It is held by this court in the decision in **Ali vs. Addl. District Magistrate (2013 (4) KLT 428)** that the words, “ another part thereof” mentioned in section 17(1) indicate shifting of the telegraph line or post from the existing position only to another part of the property of the applicant, who is seeking such shifting. In the case at hand the application submitted by the 3[rd] respondent seeking shifting of the post should have been dealt with by the 2[nd] respondent taking note of the provisions contained in section 17(1) and the settled legal principles on the subject. It is for the 2[nd] respondent to take a decision dealing with such an application considering merits of the request. On the factual matrix of the case at hand it is necessary to consider whether shifting can be applied by the 3[rd] respondent and as to whether the shifting is sought for to any other portion within the same property where posts are now situated. It is evident that without considering merits of such request for shifting, the 2[nd] respondent had approached the 1[st] respondent stating that the shifting is objected by the petitioner. 5. The 1[st] respondent while dealing with the matter had not considered any of the objections raised by the petitioner. On the 5 other hand, the shifting was permitted finding that it will not cause any inconvenience to the petitioner. It is evident that the permission was granted in exercise of power vested under section 17(2) of the Act. Power vested under section 17(2) can be exercised by the 1[st] respondent only on an application made by a party who is aggrieved by inaction on the part of the telegraph authority in deciding an application for shifting. It is totally irregular that the 1[st] respondent had exercised powers vested under section 17(2) in an application which was filed under section 16(1). Under the above mentioned circumstances this court is of the considered opinion that the impugned order cannot be sustained under law. 6. Therefore the writ petition is allowed and Ext.P5 is hereby quashed. It is made clear that the 2[nd] respondent will be at liberty to take a fresh decision on the basis of the application if any submitted by the 3[rd] respondent seeking shifting of the post in question. It is obligatory on the part of the 2[nd] respondent to afford an opportunity of hearing to the petitioner, before taking any such decision. Needless to observe that a decision with respect to allowing shifting of the post should be taken considering the legal provisions contained in section 17(1) as well as the settled legal position on the subject. 6 7. Needless to observe that the petitioner will be at liberty to challenge any such decision, if he is aggrieved by the same. It is further observed that if any action of the 2[nd] respondent with respect to drawing of the line, after any such decision, is obstructed or resisted in any manner by the petitioner, it will be left open to the 2[nd] respondent to seek appropriate remedy as contemplated under section 16(1). C.K.ABDUL REHIM, JUDGE pn/pmn/