IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 2491 of 2009(V) ------------------------- PETITIONER(S): --------------- T.V.SUBAIDA, AGED 55, W/O.R.M.USMAN, 'SHADY GROVE', KATTAKARA ROAD, OWNER OF "SMART SQUARE BUILDING", KALOOR, KADAVANTHRA ROAD, KALOOR, COCHIN - 17. BY ADV. MR.PRAVEEN K. JOY MR.ABHILASH MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. DISTRICT COLLECTOR, ERNAKULAM DIST. 3. EXECUTIVE ENGINEER, K.S.E.B, ERNAKULAM. 4. SUB ENGINEER, K.S.E.B, KALOOR. 5. ASST.EXECUTIVE ENGINEER, K.S.E.B, KALOOR. BY GOVERNMENT PLEADER MR.BIJOY CHANDRAN FOR R1, 2 ADV.MR.P.P.THAJUDEEN, SC, KSEB FOR R3 TO 5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 2491 OF 2009 V ```````````````````````````````````````````````````` Dated this the 28th day of January, 2009 J U D G M E N T The complaint of the petitioner is regarding the putting up of a transformer. 2. Case of the petitioner in brief is as follows. The petitioner is the owner of a landed property at Kaloor - Kadavanthra road. It is stated that the petitioner's predecessor surrendered a large extent of land and the present post is placed on the property so surrendered and just near 5 feet of the building. It is stated that if the transformer is placed over and across the building and property, it will cause huge loss. It is stated that the petitioner is having a business by name and style M/s.United Medi System in the building and it is dealing in medical items, medical equipments, spirit, alcoholic items for medicines etc. All the items are dangerous items which should be dealt with utmost caution and care. It is stated that fire and electric items are directed to be kept away by the manufacturers. It is also stated that the company is a franchisee for distribution and sale of advanced WPC.2491/09 : 2 : surgical equipments. It is stated that placing of the high tension transformer on a post over the property is totally shocking and against justice. If there is any question of spark, there is a chance of the entire area to be blown away. It is stated that the petitioner was never asked for her consent. It is stated that the petitioner has filed Ext.P6 before the 2nd respondent. Later, the petitioner has produced Ext.P7 stated to be a petition filed before the 2nd respondent purporting to be under section 133 of the Code of Criminal Procedure read with section 7 of Works of Licensees Rules and provision of Telegraph Act. 3. I heard learned counsel for the petitioner, learned standing counsel and learned Government Pleader. Learned counsel for the petitioner reiterates the contentions. Learned standing counsel, on instructions, submits that the transformer has been put up on a public road and that it is located at a distance of 4.3 meters from the building of the petitioner. Underground cables are already laid. It is pointed out that the distance to be maintained is 1.2 meters under the Electricity Rules. 4. Learned counsel for the petitioner relied on a decision WPC.2491/09 : 3 : of the Division Bench reported in Vasu Vs. Additional District Magistrate [2000 (3) KLT 732]. This is not a case where section 10 or section 16 of the Telegraph Act is attracted. The transformer is not placed on any portion belonging to the petitioner. It is not the case of the petitioner that the petitioner is in occupation of the property where the transformer is installed. Section 10 and restriction under section 16 are applicable only when line is sought to be drawn over the property belonging to a person or over the property which is in occupation of a person. Neither the said contingencies are present in this case. Admittedly, the transformer is put up on a public road maintaining the statutory clearance required. What is more, it is stated to be put at the distance of 4.3 meters instead of 1.2 meters as required under law. Learned counsel for the petitioner, subsequent to the filing of the writ petition, has produced Ext.P7 purporting to be a petition styled under section 133 Cr.P.C. and section 7 of Works of Licensees Rules. Learned counsel for the petitioner presses that a decision may be ordered to be taken under section 133 Cr.P.C. and till a decision is taken the line may not be charged. Learned WPC.2491/09 : 4 : standing counsel points out that section 133 Cr.P.C. would apply in a case where there is unlawful obstruction or a nuisance. Learned counsel for the petitioner also relied on a Full Bench decision reported in Bharat Plywood & Timber Products Private Ltd. Vs. Kerala State Electricity Board [1970 KLT 872]. This decision is only authority for the proposition that section 10 read with section 16 is applicable if the acts mentioned in section 10 are attempted to be done over the property belonging to a person or of which he is the occupier. Having regard to the facts of this case, I do not think it necessary to hold up the energisation of the transformer which I have ordered by an oral order any further. Accordingly, writ petition is dismissed. But, I make it clear that this judgment will not stand in the way of the Magistrate considering Ext.P7 and I express no view regarding the maintainability or the merits of Ext.P7 petition. (K.M.JOSEPH, JUDGE) aks