V.D. GEORGE v. ADDITIONAL DISTRICT MAGISTRATE, CIVIL STATION, KALPETTA, WAYANAD; ASSISTANT ENGINEER, KSEB, ELECTRICAL SECTION OFFICE, VELLAMUNDA, WAYANAD; ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, K.S.E.B., MANANTHAVADY, WAYANAD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935** ## **WP(C).No. 22610 of 2010 (A)** **-----------------------------------------** ## **PETITIONER :** **--------------------** **V.D.GEORGE,VELIYATH HOUSE, NEAR LAKSHMI TALKIES, P.O.MANANTHAVADI, WAYANAD DISTRICT.** ## **BY ADV. SRI.M.P.ASHOK KUMAR** ## **RESPONDENT(S):** - **----------------------------** **1. THE ADDITIONAL DISTRICT MAGISTRATE, CIVIL STATION, KALPETTA, WAYANAD-670 645.** **2. ASSISTANT ENGINEER,** - **KSEB,ELECTRICAL SECTION OFFICE, VELLAMUNDA, WAYANAD DISTRICT, PIN-670 645.** **3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, K.S.E.B., MANANTHAVADY, WAYANAD-670 645.** **R1 BY GOVERNMENT PLEADER SRI. M.A.ABDUL SHUKOOR R2 & R3 BY ADV. SRI.SAJEEVKUMAR K.GOPAL, S.C,KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vs** ## **WP(C).No. 22610 of 2010 (A)** **-----------------------------------------** ## **APPENDIX** **----------------** ## **PETITIONER'S EXHIBITS :** **--------------------------------------** **EXT.P1. PHOTOCOPY OF THE COMPLAINT DATED 28.06.2010 SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P2. PHOTOCOPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT ACKNOWLEDGING THE RECEIPT. EXT.P3. PHOTOCOPY OF THE COMPLAINT DATED 28.06.2010 SUBMITTED BEFORE THE 3RD RESPONDENT. EXT.P4. PHOTOCOPY OF THE COMPLAINT DATED 30.06.2010 SUBMITTED BEFORE THE SUB INSPECTOR OF POLICE.** ## **RESPONDENTS EXHIBITS** **------------------------------------EXT.R3(a). PHOTOCOPY OF THE LETTER DATED 21.7.2010 ISSUED BY THE VILLAGE OFFICER, PORUNANNORE VILLAGE TO THE 2ND RESPONDENT. EXT.R3(b). PHOTOCOPY OF THE LETTER DATED 15.12.2009 OF THE SECRETARY, VELLAMUNDA GRAMA PANCHAYAT. EXT.R3(c). PHOTOCOPY OF THE ESTIMATE FOR ELECTRIFICATION OF CHEEMPOYIL DRINKING WATER SCHEME PREPARED BY THE 2ND RESPONDENT. EXT.R3(d). A ROUGH SKETCH SHOWING THE CHEEMPOYIL DRINKING WATER SCHEME.** **// TRUE COPY //** ## **P.S. TO JUDGE** **vs** ## **C.K. ABDUL REHIM, J. -----------------------------------W.P.(C). No. 22610 of 2010 --------------------------------------------------Dated this the 17[th] day of December, 2013** ## **JUDGMENT** Grievance of the petitioner is that the respondents have planted 2 electric posts and drawn an electric line across his property having an extent of 1.75 Acres, comprised in Survey No. 125 of Porunnennoor Village, in Mananthavady Taluk, without knowledge of the petitioner and without obtaining consent from him. It is contended that on 26.06.2010 the disputed line was drawn at a time when the petitioner was not available in the property, because it was a hartal day. According to the petitioner, he noticed about the drawing of line on the next day, on 27.06.2010. On the very next day ie. on 28.06.2010 the petitioner had submitted Ext.P1 compliant before the 2[nd] respondent requesting to remove the electric line established without his consent and to pay compensation with respect to the trees cut from his property. From Ext.P2 it is evident that, the 2[nd] respondent had acknowledged receipt of Ext.P1 on 28.06.2010. A similar compliant was submitted before the 3[rd] respondent which WP(C).22610 /2010 2 was also seen acknowledged on the very same date. But the respondents proceeded for energisation of the line without considering Exts.P1 and P3 requests. Therefore this writ petition is filed seeking appropriate direction for removal of the electric line established in the property in question. 2. In the counter affidavit filed on behalf of respondents 2 and 3 it is contended that the petitioner is not the owner of the property in question. The Village Officer concerned had certified that the real owner of the property in question could not be decided now, since a case filed under the Kerala Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act 1989 is pending disposal touching upon the issue of ownership of the property in question. It is further submitted that the line is intended to energise a drinking water project at Cheempoyil in ward No.VI of Vellamunda Grama Panchayat and drawing of the line will be beneficial to 42 families residing in the locality. It is contended that the line is proposed through the shortest and feasible route. The Grama Panchayat had approved the estimate and deposited the amount required for execution of the work. It is categorically mentioned in the counter affidavit that at the time WP(C).22610 /2010 3 of the preparation of the estimate the petitioner had given oral consent for drawing of the line through the property in question, in the presence of the member of the Grama Panchayat of the ward concerned. According to respondents 2 and 3 no consent is required to be obtained before drawing of the line in view of the provisions contained in Section 10 of the Indian Telegraph Act. Since the petitioner has not raised any objection with respect to drawing of electric line, there was no necessity for approaching the 1[st] respondent invoking section 16(1) of the Act, is the contention. 3. Heard Sri. M.P.Ashok Kumar, learned counsel for the petitioner and Sri. Sajeevkumar K. Gopal, learned Standing Counsel appearing for respondents 2 and 3. Learned counsel for the petitioner contended that immediately on coming to know about attempt of respondents 2 and 3 to draw the line cutting across the property of the petitioner, he had raised objection before respondents 2 and 3. Respondents 2 and 3 were not justified in going ahead with the completion of work and energisation of the line, without resorting to the procedure WP(C).22610 /2010 4 contemplated under section 16(1) . Per contra, learned Standing Counsel contended that since the line has already been drawn and there was no resistance or obstruction at the time of drawing of line, respondents 2 and 3 were not at an obligation to seek permission from the District Magistrate as contemplated under section 16(1). Further contention raised on behalf of respondents 2 and 3 is that the petitioner is not the owner of the property in question. In support of such contention Ext.R3(a) certificate issued by the Village Officer is relied upon. On the other hand learned counsel for the petitioner contended that Ext.R3 (a) does not disclose about the title or possession of the property. On the other hand it only reveals no tax is received with respect to the property since 1993-94. 4. While considering the rival contention this court is of the opinion that, considering the provisions contained in section 10 of the Indian Telegraph Act read with section 164 of the Electricity Act 2003 the 3[rd] respondent is empowered to place any telegraph line or post in the private property of any individual. He need to seek permission of the District Magistrate for exercising such WP(C).22610 /2010 5 right, only in a case where the exercise of such power is resisted or obstructed. In strict sense, on the facts of the case, there was no resistance or obstruction caused at the time of drawing of the line. But it is conceded in the counter affidavit of respondents 2 and 3 that the line extension work was arranged on 26.6.2010 and it was completed on the same day itself. There is no refutal with respect to contention of the petitioner that on 26.6.2010 was a day on which a major political party of the State has declared Harthal. If that be so, there is justification on the part of the petitioner in not coming to know about drawal of the line. In other words, the petitioner was prevented from resisting or obstructing drawal of the line, because he was not having any knowledge about such work. Even though it is pleaded that there is an oral consent given by the petitioner, no materials is available in support of such a contention. Admittedly Exts.P1 and P3 objections were received by respondents 2 and 3 within 2 days, that too before energisation of the line in question. 5. Under the above mentioned circumstances, on the principles of equity, it is necessary to refer the matter for WP(C).22610 /2010 6 adjudication by the 1[st] respondent invoking section 16(1) of the Indian Telegraph Act. This is especially because of the fact that the line now proposed is cutting across the property of the petitioner through out the entire width and nobody had examined the question with respect to possibility of any alternate route or with respect to drawing of the line in close proximity to the boundary of the property, in a manner without causing hindrance to his beneficial enjoyment. It is pertinent to note that, by virtue of the interim order issued by this court the line was not energised and it remain as such. Under the above circumstance it is only just and proper to direct respondents 2 and 3 to refer the matter for adjudication by the 1[st] respondent. 6. Therefore the writ petition is disposed of by directing respondents 2 and 3 to refer the matter for adjudication by the 1[st] respondent, invoking section 16(1) of the Indian Telegraph Act. If any petition is received in this regard from the 3[rd] respondent the 1[st] respondent shall consider the same and shall dispose of the same after affording opportunity of personal hearing to the petitioner as well as the affected persons, if any. WP(C).22610 /2010 7 Considering the fact that the line is intended for drinking water project, it is necessary to have a decision taken at the earliest. Therefore the 1[st] respondent is directed to consider and dispose of the petition if any received from the 2[nd] respondent, at the earliest possible, at any rate within a period of 6 weeks from the date of receipt of such request. C.K.ABDUL REHIM, JUDGE pn/pmn WP(C).22610 /2010 8