IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 WP(C).No. 10656 of 2006(R) -------------------------- PETITIONER(S): --------------- 1. G.VASANTHAKUMARI AMMA, DEVI AUTOMOBILES, PUNNAMUKKU, KUNDARA, KOLLAM DISTRICT. 2. K.MURALEEDHARAN NAIR, DEVI AGENCIES, KUNDARA, KOLLAM DISTRICT. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KOLLAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, TRANSMISSION CONSTRUCTION SUB DIVISION, KERALA STATE ELECTRICITY BOARD, KUNDARA, KOLLAM DISTRICT. 3. KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 4. A.RAJASEKHAR, THENCOTTUPUTHEN VEEDU, PUNNAMUKKU, PERUMPUZHA, KUNDARA, KOLLAM DISTRICT. ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R4 SRI.P.GOPAL FOR R4 SRI.JOSE J.MATHEIKEL, SC, KSEB FOR R2 & 3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R2 & 3 SRI.K.S.MOHAMMED HASHIM, GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.10656/2006 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF the PLAN IN WHICH THE EXISTING 66 KV LINE TOWER WAS ESTABLISHED. P2 : COPY OF the COMPLAINT DATED 01/03/2004 FILED BY R4 BEFORE R1. P3 : COPY OF THE REPORT DATED 02/04/2004 SUBMITTED BY R2 BEFORE R1. P4 : COPY OF THE REPORT DATED 30/06/2004 FILED BY R2 BEFORE R1. P5 : COPY OF THE PETITION DATED 29/10/2004 FILED BY R1 BEFORE THE RESPONDENTS. P6 : COPY OF REPORT DATED 22/01/2005 FILED BY R2 BEFORE R1. P7 : COPY OF THE PETITION DATED 14/02/2005 FILED BY THE PETITIONERS BEFORE R1. P8 : COPY OF THE ORDER DATED 23/03/2005 OF R1. P9 : COPY OF the JUDGMENT DATED 08/11/2005 IN WP(C) NO.12335/2005. P10 : COPY OF OBJECTION DATED 11/01/2006 FILED BY THE PETITIONERS BEFORE R1. P11 : COPY OF THE REPORT DATED 11/01/2006 FILED BY R2 TO R1. P12 : COPY OF THE ORDER DATED 17/03/2006 OF R1. P13 : COPY OF THE DEED DATED 23/09/1993 OF THE PETITIONERS. RESPONDENT'S EXHIBITS R4(a) : COPY OF the SKETCH SHOWING THE LINE OF THE PROPERTIES OF THE 1ST PETITIONER AND R4 AND THE EXISTING 66 KV TOWER AND LINES. R4(b) : COPY OF THE OBJECTION SUBMITTED BY R4. R4(c) : COPY OF THE REPORT OF THE CHIEF ELECTRICAL INSPECTOR. R4(d) : COPY OF THE AFFIDAVIT AND PETITION DATED 11/01/2006. R4(e) : COPY OF THE ASSESSMENT REGISTER OF ELAMPALLOOR PANCHAYAT FOR THE YEAR 1995-96 //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.10656 of 2006 --------------------------------- Dated, this the 15th day of July, 2009 J U D G M E N T Challenge in this writ petition is against Ext.P12, an order passed by the 1st respondent exercising his powers under Section 16 of the Indian Telegraph Act. 2. Briefly stated, facts of the case are that the petitioners claim to be the owners of 73 cents of land in Survey Nos.40/23 & 40/80 of Elampalloor Village, which, according to them, is being used for their business purposes. It is stated that a 66 KV line is passing through this property and that one of its tower is also constructed in the property itself. 3. There was a proposal to upgrade the capacity of the line to 110 KV, which necessitated erection of a larger tower. The officials of the Board, who prepared profile of the line, identified a site within the adjacent property belonging to the 4th respondent for construction of the tower. The 4th respondent thereupon raised objections and filed Ext.P2 before the 1st respondent. Thereupon, WP(C) No.10656/2006 -2- Ext.P3 report was submitted by the 3rd respondent and Exts.P4 & P6 reports were submitted by the 2nd respondent. The petitioners also filed Exts.P5 & P7 objections. Parties were heard and Ext.P8 order was rendered, wherein the tower was permitted to be constructed in the plot of land belonging to the petitioners, as against the location within the 4th respondent's plot, identified and suggested by the 2nd respondent. 4. That order was challenged before this Court in WP(C) No.12335/2005 and the writ petition was disposed of by Ext.P9 judgment directing that the matter be reconsidered, furnishing copies of the documents relied on, and in the light of the judgment of this Court in Valsamma Thomas v. Addl.Dist.Magistrate (1997(2) KLT 979). The petitioners again filed Ext.P10 objection before the 1st respondent, and the 2nd respondent also submitted Ext.P11 report. Finally Ext.P12 order was passed by the 1st respondent again permitting the tower to be constructed within the plot belonging to the petitioners. It is challenging Ext.P12 order of the 1st respondent, this writ petition is filed. 5. A reading of the reports submitted by the Officers of the Board show that their chosen location was within the plot belonging WP(C) No.10656/2006 -3- to the 4th respondent. They have also given their reasons for their decision. It is seen that as against this proposal in Ext.P12 order, the 1st respondent has directed that the tower be constructed within the plot of land belonging to the petitioners. 6. The contention raised by the learned counsel for the petitioners is that the 1st respondent, while exercising his powers under Section 16 of the Indian Telegraph Act, is only empowered to order that the Telegraph Authority be permitted to exercise powers under Section 10 of the said Act, removing resistances or obstructions, if any. It is stated that in the process, the District Magistrate has no power to choose the location where the tower is to be erected or the alignment through which the line is to be drawn. The learned counsel for the petitioners made reference to the judgment of the Full Bench in Mammoo v. State of Kerala (1979 KLT 801) and the judgment of the learned Single Judge in Kunjulakshmi v. District Magistrate (1986 KLT 1320). The learned counsel also made reference to the judgment in Kochumariam v. Kerala State Electricity Board (1987(1) KLT 539). 7. On the other hand, the learned Senior Counsel for the 4th respondent, attempted to sustain Ext.P12 order. According to the WP(C) No.10656/2006 -4- learned Senior Counsel, the discretion exercised by the 1st respondent is a judicial discretion, and that it was taking into account the materials available, the said respondent has passed the impugned order. It is stated that the 4th respondent is more concerned about avoiding location of the tower within his property and is not concerned as to whether it is located within the property of the petitioners or not. 8. The only question that arises is whether it is within the domain of the District Magistrate, exercising powers under Section 16 of the Act, to overrule the plot identified by the expert Officers of the Electricity Board, and direct that the tower be constructed in an another location and that the line be drawn through another alignment. In my view, the Full Bench judgment in Mammoo v. State of Kerala (1978 KLT 801) and the judgment in Kunjulakshmi v. District Magistrate (1986 KLT 1320), is a complete answer to this point, where it has been categorically held that the power of the District Magistrate is only to remove obstruction and direct that the Telegraph Authority be permitted to draw the line. This does not mean that any power of choice of location or alignment has been conferred on the District Magistrate. Necessarily, while exercising WP(C) No.10656/2006 -5- his power under Section 16 as above, it is for the District Magistrate to consider the validity of objections or resistance that is offered, and pass orders regarding its sustainability exercising his discretion. This is to be done with notice to the parties concerned, and taking into account the respective contentions urged before him. If that be so, I must hold that Ext.P12 order has been passed in excess of his jurisdiction. 9. Therefore, Ext.P12 is quashed, and the District Magistrate is directed to reconsider the issue with notice to the petitioners, 4th respondent and others, and pass a fresh order exercising his powers under Section 16 of the Act as interpreted by this Court in the judgments referred to above, and also taking into account the other materials available before him. 10. Orders as above shall be passed as expeditiously as possible, at any rate, within six weeks of production of a copy of this judgment. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg