IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 16732 of 2010(N) -------------------------- PETITIONER(S): --------------- K.K.SIVAPRASAD, KOCHIPARAMBIL HOUSE, THYKKOOTTATHIL, POOTHOTTA, MANAKUNNAM, SOUTH PARAVUR P.O., ERNAKULAM-682 320. BY ADV. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.BEENA DEVASSY RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VYDHUTHI BHAVAN, THIRUVANANTHAPURAM-695 004. 2. ASSISTANT EXECUTIVE ENGINEER, KSEB, THRIPUNITHURA, ERNAKULAM-682 301. 3. UDAYAMPEROOR GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY, UDAYAMPEROOR P.O., ERNAKULAM-682 307. ADV. SRI.PHILIP T.VARGHESE FOR R-3 SRI.THOMAS T.VARGHESE FOR R-3 SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R- 1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 16732 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of November, 2010 J U D G M E N T The property comprised in re-survey 728/1 and 728/13 belongs to Kochiparambil Tharavad in which the petitioner is the senior most male member. The property was in the possession of one Damodaran who was its mortgagee. OS No. 829/1995 was filed before the Sub Court Ernakulam for redeeming the mortgage. The petitioner's family got delivery of the property in terms of Ext.P1 delivery warrant dated 30.7.2008. The contention of the petitioner is that during the pendency of the aforesaid original suit the mortgagee permitted the second respondent to instal an electric post in the aforementioned property. According to the petitioner, there is no pathway passing through the aforesaid property. When the 3rd respondent took steps to cut open a pathway through the aforementioned property, the petitioner had raised objections against the same. Thereupon, WPC No.9506/2004 was filed by the petitioner. Ext.P2 is the interim order passed thereon. As per Ext.P2 this Court WPC.16732/2010 : 2 : directed the Police to see that the Panchayath or Government are not cutting open a path way without acquisition of property from the petitioner. The learned counsel for the petitioner submitted that subsequently, the above writ petition was closed making the above interim order absolute. The petitioner had to approach this Court again by filing WPC No.30324/2007 when another person by name Vamanapanicker attempted to get electric connection from the post that was implanted in the property belonging to the petitioner's family viz., the post bearing No.UP 224/2/4/17. The said writ petition was disposed of as per Ext.P3. As already noticed hereinbefore, the said writ petition was filed by the petitioner apprehending action on the part of the first respondent herein, to give electric connection to one Vamanapanicker from the aforesaid post. It is to be noted, in this context, that in this writ petition, a counter affidavit has been filed on behalf of respondents 1 and 2 stating that no such application was submitted by the said Vamanapanicker for getting electric connection from the post in question. On 29.5.2009 the petitioner has submitted a representation WPC.16732/2010 : 3 : before the Chief Engineer of the first respondent for removing the electric post from the aforesaid property. According to the petitioner, though the officials of the first respondent visited the property pursuant to the said representation no further action was taken in the matter. Subsequently, the petitioner has preferred Ext.P4 revision dated 3.12.2009 which was submitted to the second respondent. Later, the petitioner was informed that since the post in question was implanted thereon at the instance of the 3rd respondent Panchayath, the same cannot be removed from there. Later, the petitioner has caused a lawyer notice to the respondent 2 and 3. However, the same also did not yield any result. It is in the said circumstances that this writ petition has been filed. 2. As already noticed herein before, a joint counter affidavit has been filed in this writ petitioner by respondents 1 and 2 and the 3rd respondent filed a separate counter affidavit. Subsequently, the petitioner has moved I.A No. 13173/2010 in this writ petition seeking appointment of an Advocate Commissioner for ascertaining certain facts and to submit a WPC.16732/2010 : 4 : report thereon. The Commissioner appointed by this Court for that purpose has submitted a report on 12.10.2010. Before adverting to the aforesaid report it is relevant to refer to the contentions raised on behalf of the respondents. In Paragraph 3 of the counter affidavit respondents 1 and 2 submitted that the post in queston was installed in a path way. Ext.P2 is the location sketch. It is further stated therein that the petitioner who is residing nearby did not raise any objection against installation of the said post. Since current charge for the street light is being remitted by the Panchayath, their consent is required for removing the post and therefore, the petitioner was informed to get the consent of the 3rd respondent and to produce the same. However the petitioner did not produce such a consent hitherto. In the counter affidavit filed by the 3rd respondent it is stated that the said street light was installed therein under the People planning Scheme for 1996- 97 as requested by the 3rd respondent Panchayath vide resolution X(a) dated 19.3.1996. It is further stated therein that the said street light is essentially for the public of the locality and therefore the prayer for its removal could not be WPC.16732/2010 : 5 : allowed. That apart, it is stated therein that the petitioner has not produced any records to show that the street light in question has been installed in his property. According to the 3rd respondent the said street light has been installed at the end of the Kochiparambil road which is a village road maintained by the 3rd respondent. 3. As already noticed hereinbefore, a commission was taken out by the petitioner and the Advocate Commissioner after conducting site inspection filed a report. The said report in so far as it is relevant for the purpose of deciding the issue involved in this case reads thus: 4. The pathway to the disputed property starts from MLA road and leads towards west. The way from MLA road (Puthiyakavu-Poothotta) to the property of the petitioner is having approximate length of 200mts, The pathway then further proceeds 10mts and ends at the property of the petitioner. The electric post bearing No.224/2/6/17 is erected in the property of the petitioner. The area around the electric post was completely covered with wees and shrubs making it difficult for a close inspection. I could not see any pathway leading upto the electric post. 5. The next direction was to ascertain whether the post has been energized or not. The petitioner and the 2nd respondent told me that the line has been energized and I could notice a tube hanging misplaced from the hook and I am producing a rough sketch along with this report. 4. According to the Commissioner the pathway to the dispute starts from the MLA Road and reaches towards west WPC.16732/2010 : 6 : and the same ends at the property of the petitioner. The electric post bearing No.224/2/6/17 is erected in the property of the petitioner completely covered with weeds and shrubs. It is further stated therein that the commissioner could not see any pathway leading up to the electric post. It is further reported that an electric tube seen hanging from the hook. Though a copy of a commissioner report was served on the respondents, they did not file any objection to the same. The electric post bearing No.224/2/6/17 was erected in the property of the petitioner. However, the commissioner could not see any pathway leading up to the electric post. As already noticed hereinbefore, in the statement filed by the 3rd respondent Panchayath, they have stated that a street light was installed at the end of Kochiparambil road which is a village road maintained by the 3rd respondent. But the commissioner report would reveal that the pathway to the disputed property starts from the MLA road from Puthiyakavu- poothotta and it proceeds 10 metres and ends at the property of the petitioner. In view of the specific statement in the report to the effect that electric post has been erected in the WPC.16732/2010 : 7 : petitioner's property and there is not even any semblance of any pathway leading up to the same through the property in question the 3rd respondent, in case of any dispute with respect to the aforesaid factual statement, should have filed objection to the commission report. That apart, admittedly, if the post in question has been installed in the pathway belonging to the 3rd respondent, the 3rd respondent should have produced the road register which has been maintained by the 3rd respondent to show that the particular post has been installed on the side of the road which is being maintained by the 3rd respondent- Panchayath. No such document was produced in this court, despite the specific statement in the report that it has been installed in the property belonging to the petitioner. In this context it is also relevant to note that as per Ext.P2, a Division Bench of this Court directed the Police to see that the Panchayath or Government are not cutting open a pathway without acquisition of the property from the petitioner in WP(C)9506/2007. The 3rd respondent did not have a case that they have filed a counter affidavit in the said writ petition disputing the contention raised by the petitioner WPC.16732/2010 : 8 : therein or to the effect that subsequent to Ext.P2 order and the judgment in WP(C) No. 9506/2007 they have acquired the property from the petitioner. From the facts thus obtained in this stage, I have no hesitation to hold that the 3rd respondent has failed to refute the contentions raised by the petitioner that the post in question has been installed in his property. The commissioner's report would support the contention of the petitioner. In short, on account of the failure on the part of the 3rd respondent to refute the observations made in Ext.P2 and the statement in Ext.P6 report, I am of the view that the petitioner is perfectly justified in making Ext.P4 revision before the second respondent that carries a request for shifting the post in question. There is no dispute with respect to the submission of Ext.P4. Necessarily, it must be a request made under section 17 of the Telegraph Act. When such an application is received the competent authority viz., the second respondent is bound to take appropriate steps in accordance with the provisions under Section 17 of the Telegraph Act. True that the second respondent has earlier, directed the petitioner to produce a consent letter from the 3rd WPC.16732/2010 : 9 : respondent as a condition for considering the request made by the petitioner. In view of my specific findings in this writ petition that the post in question has been installed in the property belonging to the petitioner, I am of the view that the respondent 1 and 2 cannot insist for production of consent letter from the 3rd respondent any more. The 3rd respondent also cannot object to shifting of the same in view of the facts and circumstances of the case. Therefore, it will be open to the petitioner to pursue with the remedy to get the post in question shifted from the property. As he has already made a request before the competent authority under section 17 of the Telegraph Act, the second respondent has to take appropriate steps expeditiously on Ext.P4 for shifting the post in question viz. electric post bearing No.224/2/4/17 from the property comprised in Re-survey No. 728/1 and 728/13 belonging to the petitioner's family. Appropriate steps shall be taken in the matter, expeditiously, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Needless to say that the petitioner has to bear the necessary expenses for the purpose of shifting of the said post WPC.16732/2010 : 10 : from the aforesaid property. in terms of the order to be passed on Ext.P4. Disposed of accordingly. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge