IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 10083 of 2009(E) -------------------------- PETITIONER(S): --------------- P.T.JOHNY ALEX @ DENNY THOMAS, PAZHAMPILLY HOUSE,DONBOSCO ROAD, VADUTHALA-KOCHI-682023. BY ADV. SRI.BABU CHERUKARA SRI.NELSON J.MANAYIL SRI.P.JOSHY JOSE SRI.S.RUSSEL SRI.V.R.ARUN RESPONDENT(S): --------------- 1. THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM. 2. THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE,K.S.E.B., H.M.T.COLONY P.O., KALAMASSERRY-683503. 3. THE EXECUTIVE ENGINEER, TRANSMISSION DIVISION,K.S.E.B., KALAMASSERRY. 4. THE DEPUTY GENERAL MANAGER, M/S.RAIL VIKAS NIGAM LTD., DEVI KRIPA,HIG AVENUE ROAD, 38/1968 GHANDI NAGAR, COCHIN-682020. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R2,3 SRI.N.B.SUNIL NATH,SC, RAILWAYS FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC,J. --------------------- W.P.(C).No.10083 OF 2009 ------------------------ Dated this the 21st day of May, 2009. JUDGMENT Petitioner claims to be the owner of an Island known as Pazhampilly Thuruthu where he has established a tourist resort under the name and style Saddlewoods Island Resorts under Thomcos Inns and Resorts. According to the petitioner the total extent of the Island of the land is 4.89 acres, out of which, 40 cents have been acquired for Vallarpadom Rail Connectivity. 2. Petitioner submits that, in 1984 respondents had installed a tower, after paying compensation. Presently for establishing the rail connectivity, it is necessary for the respondents to increase the height of the tower. This necessitated construction of a new tower and for that propose, it would appear from the records that in December, 2008, the respondents have constructed basements at a location which is immediately to the south of the existing tower. According to WP(c).No.10083/09 2 the petitioner coming to the know of the same, alleging the work undertaken to be a case of tresspass he issued Ext.P3 notice and in response Ext.P4 reply was issued by the respondents justifying the work done and requesting the petitioner to claim suitable compensation. Petitioner submits that in the aforesaid circumstances he approached this court and filed a writ petition as WP(c).No.6822/09, which was disposed of by Ext.P5 judgment relegating the respondents to pursue the matter before the ADM as provided under the Telegraph Act. Accordingly, the matter was taken up before the ADM, who passed Ext.P6 order permitting the respondents to continue the work and in these circumstances the writ petition has been filed. 3. Presently, petitioner is confining his request for shifting the location of the new tower further to the north western corner of the Island. According to him, if the location is shifted, that will reduce his inconvenience. When this suggestion was made to the respondents, respondents have expressed their willingness to consider the request of the petitioner subject to its feasibility and on the petitioner reimbursing the cost already incurred by them for constructing the basement at the new location. In fact WP(c).No.10083/09 3 counsel for the respondents made available in court a statement indicating that they have so far spent an amount of Rs.2,00,956/- for constructing the basement referred to above. 4. Although petitioner has disputed his liability to reimburse the cost incurred by the respondents for setting up the new basements, still having regard to the fact that the objections raised by the petitioner against the construction was a much belated one, in as much as, though the work was started in December, 2008, petitioner raised objection only in February, 2009, I feel it is only appropriate that the petitioner should reimburse the expenses incurred by the respondents. Therefore, the writ petition is disposed of with the following directions. 5. That within 10 days from today, the 3rd respondent shall intimate the petitioner the cost incurred by them for construction of the basements for the new tower and if the petitioner reimburses the expenses so demanded within 2 weeks thereafter, the respondents shall consider the request of the petitioner for re-locating the new tower further to the north western corner of the Island in question, subject to its feasibility. WP(c).No.10083/09 4 On such examination, to the extent it is possible, the respondents shall relocate the tower and thereafter at liberty to proceed with the construction of the Tower. Needless to say it will be open to the petitioner to claim compensation as is admissible in law to the injury, if any, that is caused. Writ Petition is disposed of. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.10083/09 5