IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 17196 of 2008(V) -------------------------- PETITIONER: ------------ R.KUNJIKRISHNAN NAIR , S/O.LATE RAMAN PILLAI, PANICKAKUZHY HOUSE, PRAMADOM VILLAGE MALLASSERY POST, PATHANAMTHITTA DISTRICT PIN 689 646. BY ADV. SRI.K.S.BABU SRI.GEEN T.MATHEW RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR COLLECTORATE, PATHANAMTHITTA DISTRICT. 2. ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, PATHANAMTHITTA DISTRICT. 3. ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION KERALA STATE ELECTRICITY BOARD PATHANAMTHITTA 689 645. 4. NARAYANAN NAIR, PANICKAKUZHIYIL HOUSE MAROOR, MALLASSERY POST 689 646 PATHANAMTHITTA DISTRICT. 5. V.MURALEEDHARAN NAIR GEETHA BHAVAN, MAROOR, MALLASSERY POST 689 646 PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.T.SURESHKUMAR FOR R4 & 5 GOVERNMENT PLEADER SRI.BEJOY CHANDRAN FOR R1, 2 ADV.SRI.P.P.THAJUDEEN, SC, KSEB FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF LOCATION SKETCH P2 COPY OF OBJECTION IN NOTICE ISSUED BY R2. P3 COPY OF PETITION DT 27.2.08 P4 COPY OF ORDER DT 26.5.08. RESPONDENTS' EXHIBITS: R4(A) PHOTOGRAPHS EVIDENCING THE LIE OF THE PROPERTY. R4(B) REPRESENTATION DT 31.5.07. R4(C) REPORT DT 25.8.07. R4(D) SKETCH DT 25.8.07. R4(E) REPORT DT 4.3.07. R4(F) LOCATION SKETCH PREPARED BY VILLAGE OFFICER. R4(G) LOCATION SKETCH R4(H) NOTICE DT 20.11.07. R4(I) REPLY TO R2. R4(J) RECEIPTS DT 3.6.08 AND 7.6.08. R4(K) REPRESENTATION TO R1. R4(L) REPRESENTATION DT 5.11.07. /TRUE COPY/ P.A.TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 17196 OF 2008 V ```````````````````````````````````````````````````` Dated this the 8th day of August, 2008 J U D G M E N T Petitioner is a consumer of the 3rd respondent having consumer No.880 for more than 40 years. Petitioner approaches this Court challenging Ext.P4. He seeks a direction to the 2nd respondent to consider the objections raised by him and to grant an opportunity for personal hearing. By Ext.P4, a petition filed by the 4th and 5th respondents under section 17(3) of the Indian Telegraph Act, 1885 has been allowed and it is ordered that the line passing through the property of the 4th respondent is to be shifted as per the proposal of the KSEB. 2. I heard both sides. The main contention of the petitioner is that Ext.P4 is against the dictum of this Court in Moidu Vs. The District Magistrate and others [ILR 1998 (2) Ker 547]. It is the case of the petitioner that shifting under section 17 of the Act is only permissible within the property. It is pointed out that Ext.P4 is in excess of jurisdiction under section 17 of the Act as shifting of the line is not confined within the property. Learned counsel for the party respondent made an attempt to contend that the aforesaid WPC.17196/08 : 2 : dictum is erroneous. Section 17(1) of the Telegraph Act reads as follows: “ When, under the foregoing provisions of this Act, a telegraph line or post has been paced 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 or post accordingly. ” From section 17(1) of the Act, it is clear that in order to derive jurisdiction to order removal or alteration of telegraph line or a post the following conditions must be satisfied. A telegraph line or a post must have been placed by the telegraph authority under, over, along, across, in or upon any property. The property must not be one vested in or under the control or management of a local authority. The person entitled to do so i.e, the applicant, must desire to deal with that property which is more convenient and the telegraph line or the post is to be removed to another part thereof or WPC.17196/08 : 3 : to a higher or lower level or altered in form. Thus, if section 17 applies apart from the other requirements, it must involve the removal of the telegraph line or the post to another part of the property. This conclusion is inevitable as the words 'another part thereof' would be meaningless if it is not read in the context of the words 'upon any property' which is already referred to in the section. The question of placing any other interpretation does not even arise. As far as the facts of this case is concerned, it is not a case where it involves the removal of the post or the line to a higher or lower level. Also it cannot be said that the prayer in the petition of respondents 4 and 5 can be treated as one seeking alteration in form of the line or the post. In view of the fact that the prayer in the petition filed by respondents 4 and 5 under section 17 of the Act did not involve the indispensable elements required for attracting jurisdiction under section 17 of the Act, the order of the District Magistrate invoking power purportedly under section 17 is afflicted with patent illegality and I am constrained to quash Ext.P4. Accordingly, I quash Ext.P4. Writ petition is allowed as above. Sd/- (K.M.JOSEPH, JUDGE) aks