The petitioner contends that his right as
an owner of the property adjacent to a street cannot be
invaded relying on P.K.Wariyar v. State of Kerala and
others [AIR 1990 Kerala 218]. The petitioner adds that
he should have an unhindered right of passage from his
property to the public street relying on B.Govinda Rao
v. District Collector and others [AIR 1983 Kerala 10].
These are matters to be addressed by the civil court as
and when the petitioner institutes the proceedings and
not for the District Magistrate to ponder over in a
situation like this. The District Magistrate is
clothed with jurisdiction only if the telegraph line or
post has been placed under, over, along, across, in or
upon the property of the petitioner. Resultantly this
writ petition is dismissed without prejudice to the
right if any of the petitioner to move any forum other
than the District Magistrate as per law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
FRIDAY, THE 9TH DAY OF JANUARY 2015
WP(C).No. 474 of 2015 (H)
G.SUNIL KUMAR,
Vs
KERALA STATE ELECTRICITY BOARD
---------------------
Dated this the 9th day of January, 2015
Citation;AIR 2015 kerala 122
The petitioner contends that the value of his
property has been materially diminished (blocking its
ingress and egress as well) owing to the erection of a
transformer and electric posts. It is however conceded
that the transformer and the electric posts have been
erected outside his property on the poramboke land on
the side of the road. The first prayer in the writ
petition is for an expeditious disposal of an
application pending with the District Magistrate for
shifting the transformer and the electric posts. The
second prayer in the writ petition is for a direction
to the Kerala State Electricity Board and its officials
to assess the damages and pay compensation.
2. The petitioner maintains that the
transformer and the electric posts were erected on the
poramboke land along side the road notwithstanding his
objection evidenced by representations. The suit filed
by the petitioner as O.S.No.324/2010 seeking a decree
of prohibitory injunction against the erection was
admittedly dismissed for default. The District
Collector refused to intervene in the erection of the
transformer and the electric posts despite the report
of the village officer favourable to the petitioner.
The petitioner did move the Lok Ayuktha which directed
the Kerala State Electricity Board and its officials to
take a decision on the request of the petitioner to
shift the transformer and the electric posts. But the
Assistant Executive Engineer turned down the request of
the petitioner on the ground that such shifting would
cause substantial drop in the voltage of electricity.
It was under these circumstances did the petitioner
move the District Magistrate by an application under
Section 17(3) of the Indian Telegraph Act, 1885 ['the
Act' for short] seeking shifting and compensation.
3. I heard Mr.George Varghese
Perumpallikuttiyil, Advocate on behalf of the
petitioner and Mr.Sajeev.K.Gopal, Standing Counsel on
the behalf of the Kerala State Electricity Board.
4. The relevant provisions in the Act which
have a bearing on the case in hand are as follows:-
"10. Power for telegraph authority to
place and maintain telegraph lines and
posts:- The telegraph authority may, from
time to time, place and maintain a telegraph
line under, over, along or across, and posts
in or upon, any immovable property;
Provided that-
(a) x x x x
(b) x x x x
(c) except as hereinafter provided, the
telegraph authority shall not exercise
those powers in respect of any property
vested in or under the control or
management of any local authority,
without the permission of that
authority; and
(d) in the exercise of the powers conferred
by this section, the telegraph
authority shall do as little damage as
possible, and, when it has exercised
those powers in respect of any property
other than that referred to in clause
(c), shall pay full compensation to all
persons interested for any damage
sustained by them by reason of the
exercise of those powers.
16. Exercise of powers conferred by
section 10, and disputes as to compensation,
in case of property other than that of a
local authority:-
(1) x x x x
(2) x x x x
(3) If any dispute arises concerning the
sufficiency of the compensation to be paid
under section 10, clause (d), it shall, on
application for that purpose by either of
the disputing parties to the District Judge
within whose jurisdiction the property is
situate, be determined by him.
17. Removal or alteration of telegraph
line or post, on property other than that of
a local authority:- (1) When, under the
foregoing provisions of this Act, a
telegraph line or post has been placed by
the telegraph authority under, over, along,
across, in or upon any property, not being
property vested in or under the control or
management of a local authority, and any
person entitled to do so desires to deal
with that property in such a manner as to
render it necessary or convenient that the
telegraph line or post should be removed to
another part thereof or to a higher or lower
level or altered in from, he may require the
telegraph authority to remove or alter the
line of post accordingly:
Provided that, if compensation has been
paid under section 10, clause (d), he shall,
when making the requisition, tender to the
telegraph authority the amount requisite to
defray the expense of the removal or
alteration, or half of the amount paid as
compensation, whichever may be the smaller
sum.
(2) If the telegraph authority omits
to comply with the requisition, the person
making it may apply to the District
Magistrate within whose jurisdiction the
property is situate to order the removal or
alteration." (emphasis supplied)
5. The power of the telegraph authority to
place and maintain a telegraph line under, over, along,
or across, and posts in or upon any immovable property
is under Section 10 of the Act. A person interested is
entitled to be paid full compensation for any damage
sustained by him under Section 10(d) of the Act by
reason of the exercise of such power. Therefore the
pre-requisite is that the telegraph line should have
been placed under, over, along, or across and posts
erected in or upon his immovable property. The same
wording can be found in Section 17 of the Act relating
to the power of the District Magistrate to order
removal or alteration of telegraph line or post. The
restriction is ofcourse only for making an application
under Sections 10, 16 or 17 of the Act to the District
Magistrate or the District Judge as the case may be. I
am fortified in this view by the decision in Sudeesh v.
K.S.E.B [2009 (3) KLT 860] which dealt with an
application under Section 16 of the Act to remove an
obstruction for installation on the side of a road.
6. The petitioner has no case that the
telegraph line or post has been placed by the telegraph
authority under, over, along, across, in or upon his
property. The petitioner has also no case that the
telegraph authority has exercised the powers in respect
of the property vested in any local authority without
obtaining its permission. The only case of the
petitioner is that the transformer and the electric
posts have been erected outside his property
diminishing its value and affecting its access. The
remedy if any of the petitioner is to move the civil
court only for a decree of mandatory injunction or for
damages in the alternative. The irresistible
conclusion therefore is that the application filed by
the petitioner with the District Magistrate for
shifting or for compensation is not maintainable. No
direction could be issued to the District Magistrate to
consider an application not maintainable in law or to
award compensation in the circumstances.
7. The petitioner contends that his right as
an owner of the property adjacent to a street cannot be
invaded relying on P.K.Wariyar v. State of Kerala and
others [AIR 1990 Kerala 218]. The petitioner adds that
he should have an unhindered right of passage from his
property to the public street relying on B.Govinda Rao
v. District Collector and others [AIR 1983 Kerala 10].
These are matters to be addressed by the civil court as
and when the petitioner institutes the proceedings and
not for the District Magistrate to ponder over in a
situation like this. The District Magistrate is
clothed with jurisdiction only if the telegraph line or
post has been placed under, over, along, across, in or
upon the property of the petitioner. Resultantly this
writ petition is dismissed without prejudice to the
right if any of the petitioner to move any forum other
than the District Magistrate as per law.
The Writ Petition is dismissed. No costs.
V.CHITAMBARESH,
Judge.
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