IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17196 of 2008(V)
1. R.KUNJIKRISHNAN NAIR , S/O.LATE RAMAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. ADDITIONAL DISTRICT MAGISTRATE
3. ASSISTANT EXECUTIVE ENGINEER
4. NARAYANAN NAIR, PANICKAKUZHIYIL HOUSE
5. V.MURALEEDHARAN NAIR
For Petitioner :SRI.K.S.BABU
For Respondent :SRI.M.T.SURESHKUMAR
The Hon'ble MR. Justice K.M.JOSEPH
Dated :08/08/2008
O R D E R
K.M. JOSEPH, J.
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W.P.(C) No. 17196 OF 2008 V
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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