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Tuesday 26 May 2015

Whether civil suit is maintainable when transformer and electric posts have been erected outside property of a person?


 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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