IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12625 of 2009(W)
1. KUNIYIL SUDHEESH, AGED 32 YEARS,
... Petitioner
2. KATTILAPEEDIKAYIL ASWATHI,
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. ASSISTANT EXECUTIVE ENGINEER,
For Petitioner :SRI.K.M.JAMALUDHEEN
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :25/06/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 12625 OF 2009 (W)
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Dated this the 25th day of June, 2009
J U D G M E N T
Petitioners grievance is that respondents are proposing to
install a transformer in the tarred road frontage of the petitioners
property having an extent of 21.399 cents of land. Ext.P1 is the
sketch of the petitioners property. According to the petitioners,
coming to know of the above proposal of the respondents, they
filed Ext.P3 objection to the 1st respondent. Inspite of it, when
steps were taken for installing the transformer, they filed this writ
petition to prevent the respondents from proceeding with the
proposal.
2. Statement has been filed on behalf of the respondents.
In the statement, it has been clearly stated that the proposal of
the Board is to install two poles and a transformer and that too
not in the property of the petitioners, but on the public road. It is
stated that the location of the transformer was selected as it was
very near to the load centre and that the feeding arrangement is
practically much suitable. It is also pointed out that there is no
other technically suitable vacant location for the installation of the
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transformer and that all the vacant plots available in the area are
unsuitable for their purpose.
3. Yet another point highlighted is that the petitioners
property has a road frontage of 12.45 meters and that the double
pole structure for transformer will occupy only 3 meters on the
road side leaving a clear road frontage of 9.45 meters. It is stated
that even if the proposal is carried out, that will not affect the
ingress and egress of the petitioners to the property.
4. Counsel for the petitioners would argue that when
objection has been raised by filing Ext.P2, respondents ought to
have taken up the matter before the District Magistrate in terms
of Section 16(1) of the Indian Telegraph Act.
5. However, counsel for the Board submits that Section
16 of the Indian Telegraph Act is inapplicable to the case in
question in as much as the transformer is proposed to be installed
not in the private property of the petitioners, but on the side of a
public road.
6. I have considered the submissions made.
7. Section 10 of the Act provides that the Telegraph
Authority may, from time to time place and maintain a telegraph
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line under, over, along, or across and posts in or upon any
immovable property. Sub Section (d) provides that in exercising
the power under Section 10, the authority shall do as little
damage as possible, and, when it has exercised those powers in
respect of any property, other than those vested in or under the
control of any local authority, the authority shall pay full
compensation to all persons interested for any damage sustained
to them.
8. Section 16 provides that if the exercise of the powers
mentioned in Section 10(d) is resisted or obstructed, the District
Magistrate may pass order that the Telegraph authority shall be
permitted to exercise powers under Section 10.
9. A combined reading of Section 10(d) and 16(1) of the
Telegraph Act would therefore show that the power of the District
Magistrate to remove obstruction as provided in Section 16(1) is
only in relation to the properties covered by Section 10(d). In
other words, the removal of obstruction can only be in relation to
private property.
10. In this case, the specific case of the Board is that the
transformer in question is proposed to be installed only in a public
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road and if that be the factual position, there is no question of the
respondents making application under Section 16(1) of the
Telegraph Act to the Additional District Magistrate, for an order
under the said section.
11. Counsel for the petitioners then contended that there
are several other convenient locations available in the locality
where the structure in question could be erected. A reading of the
statement filed on behalf of the respondents would show that
they have identified the location in question mainly because it is
very near to the load centre and that the feeding arrangement is
practically much suitable. It is also their specific case that the
other vacant plots are not technically suitable. One should
concede that the respondents are the most competent persons to
assess the technical suitability or otherwise of a location for
installing a transformer. Once that freedom is conceded to the
respondents, unless a case of malafides or extreme arbitrariness
is made out, this Court will not be justified in sitting in judgment
over the choice of a location done by the respondents.
12. In this case, I am not satisfied that the petitioner has
succeeded in making out a case coming within the aforesaid
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parameters and calling for interference of the decision taken by
the respondents regarding the location of the transformer in
question.
13. Irrespective of all this, it is offered by the respondents
that they are willing to shift the location of the proposed
transformer to the north western corner of the petitioners
property so that the inconvenience if any to the petitioners could
be minimised. However, according to them, such proposal can be
implemented only if the petitioners agree for installing the stay
wires in their private property.
14. In view of the offer now made by the respondents, it is
clarified that if the petitioners are willing to permit installation of
the stay wires in their property, it will be open to the petitioners
to approach the 2nd respondent, within 10 days from today, in
which event, the 2nd respondent shall do the needful for shifting
the proposed location of the transformer to the north western
corner of the petitioners property.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp