Aleyamma v. Additional District Magistrate Ernakulam & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **WP(C).NO.1957 OF 2017(T)** ## **PETITIONER :** **ALEYAMMA, AMBATTU HOUSE, NATNHIATTUKUNNAM, NORTH PARAVUR, ERNAKULAM** **BY ADVS. SMT.S.SIKKY SMT.T.RESHMA** ## **RESPONDENTS :** **1 ADDITIONAL DISTRICT MAGISTRATE ERNAKULAM, PIN-682035 2 THE ASSISTANT EXECUTIVE ENGINEER ELECTRIC SUB DIVISION KERALA STATE ELECTRICITY BOARD, VARAPUZHA, ERNAKULAM, PIN-683517 3 AMBILI BINU BEENA BHAVAN, NANTHATTUKUNNAM, NORTH PARAVUR, ERNAKULAM, PIN-683513** ## **R1 BY GOVERNMENT PLEADER** - **R1-2 BY SRI.P.A.AHAMED, SC, KERALA STATE ELECTRICITY BOARD LIMITED R3 BY ADV. SRI.RENJITH RAJAPPAN R3 BY ADV. SRI.SAM M.THOMAS R3 BY ADV. SRI.B.JAYABAL R3 BY ADV. SMT.L.PREETHA R3 BY ADV. SRI.DINESH R.SHENOY** ## **SRI SUDHEER GANESH KUMAR SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO.1957 OF 2017(T)** **2** ## **JUDGMENT** The above captioned Writ Petition is filed challenging Ext.P3 order passed by the 1[st] respondent in exercise of his powers under Section 16(1) of the Indian Telegraph Act, 1885 by which permission was accorded to the 2[nd] respondent to provide service connection to the residential home of the 3[rd] respondent by imposing certain conditions. 2. The facts of the case in its essence is that the 3[rd] respondent is the neighbour of the petitioner and she is residing on the eastern side of the property of the petitioner. Their properties are situated by a pathway lying in the North-South direction. On the northern side of the property of both the petitioner and the 3[rd] respondent is the Gandhipuram – Athani main road. The 3[rd] respondent applied for an electric connection to the building which was being newly constructed by her. The 2[nd] respondent decided to draw a line from a post situated on the northern side of the main road and through the pathway lying on the eastern side of the property of the petitioner. According to the petitioner, if the line is so drawn, it would cause danger to her property and several trees and plants would have to be cut and removed. According to the petitioner, if a new post is installed towards the eastern **WP(C).NO.1957 OF 2017(T)** **3** side from the post from which line is being drawn, supply can be provided without any inconvenience. When objection was raised by the petitioner, the matter was referred to the 1[st] respondent. The 1[st] respondent issued summons to the parties and considered the objections of both sides. He took note of the fact that the line was being drawn through the pathway, which is meant for accessing the property of the 3[rd] respondent and no serious inconvenience is likely to be caused to the petitioner. He also took note of the fact that the access of the petitioner to the main road was through the northern side of her property. The 2[nd] respondent on the other hand contended that the line was drawn after providing adequate clearance and to alleviate any inconvenience, a side arm can be placed so that some distance can be maintained from the eastern boundary of the property of the petitioner. After considering all facts, the proposal made by the 2[nd] respondent was accepted and sanction was accorded. 3. Smt.S.Sikky, the learned counsel appearing for the petitioner, submitted that the relationship between the parties are quite strained and the only intention of the 3[rd] respondent is to cause inconvenience to the petitioner. She contended that the line is being drawn very close to the eastern boundary of the property of the petitioner and referring to **WP(C).NO.1957 OF 2017(T)** **4** the photographs produced by her as Ext.P2, it is urged that her property is thickly planted with trees. It is further contended that though a temporary line was drawn by using a side arm adequate distance is not maintained. 4. Sri.Sudheer Ganeshkumar, the learned standing counsel appearing for the 2[nd] respondent submitted that the objection raised by the petitioner is unsustainable. I have also heard Sri.Dinesh R.Shenoy, the learned counsel appearing for the 3[rd] respondent. The standing counsel appearing for the 2[nd] respondent has produced the sketch relied on by the 2[nd] respondent and have also made available the file. 5. I find from the records that the line has been drawn through the pathway situated on the eastern side of the property of the petitioner. The District Magistrate took note of the fact that the KSEB had already drawn 35 metres of overhead line and 28 metres of weather proof line through the pathway and it was then that objection was raised. The inconvenience projected by the petitioner herein is that certain branches and leaves of certain trees would have to be trimmed if the line is being drawn as proposed. The proposal of the petitioner that the line should be drawn from a point towards the eastern side was found not technically or financially plausible. In order to safeguard the interest of **WP(C).NO.1957 OF 2017(T)** **5** the petitioner, necessary directions have been issued by the 1[st] respondent. 6. In **Valsamma Thomas v. Additional District Magistrate[1]** , a Division Bench of this Court after surveying the entire law on the point as well as the provisions in the statute, reiterated the scope of interference against an order passed by the District Magistrate under Section 16(1) of the Telegraph Act. In paragraph Nos. 11 and 12 of the report it was observed thus: “11. It is also clear from the authorities and judicial decisions that judicial review is directed not against the decision, but is confined to the examination of the decision making process. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. 12. Thus, on a review of the authorities of this question, we come to the following conclusions: - (1) The District Magistrate has to exercise his discretion judicially. - (2) He has to pass the order under S.16(1) of the - 1 [1997 (2) KLT 979] **WP(C).NO.1957 OF 2017(T) 6** Telegraph Act, after hearing the parties and after taking such evidence as is required with regard to the objections raised. (3) The order passed by the Court should be a speaking order. (4) The order should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same. (5) The order should also reflect the materials relied on by the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by malafides this Court will not be justified in interfering with such orders. This Court will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters. 7. As held by this Court in **Indu Chandran and Ors. v. KSEB, Thiruvananthapuram[2]** , this Court will be justified in interfering with the discretion exercised by the District Magistrate only in cases of established illegality, irrationality, procedural impropriety or where the decision is found to be unreasonable in the wednesbury sense or vitiated 2 (2017 (3) KLT 420) **WP(C).NO.1957 OF 2017(T)** **7** by malafides, either factual or legal. In the instant case, I am unable to find any infirmities in the order which is a considered one passed after hearing all sides. There is no allegation of malafides nor can it be said that the order is perverse. The decision of the District Magistrate is clearly based on the opinion as regards feasibility given by the 2[nd] respondent. In that view of the matter, no interference is warranted. This Writ Petition will stand dismissed. There will be no order as to costs. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ## **NS** **WP(C).NO.1957 OF 2017(T)** **8** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXHIBIT P1 A ROUGH SKETCH SHOWING THE PROPERTY OF THE PETITIONER AND 3RD RESPONDENT WITH PROPOSED AND FEASIBLE ROUTES.** **EXHIBIT P2** **TRUE COPY OF THE PHOTOGRAPHS SHOWING THE SAID ELECTRIC POST, WALL, THE TREES AND PLANTS.** **EXHIBIT P3** **TRUE COPY OF THE ORDER NO.K.DIS/48240/16/M5 DATED 29.11.2016 OF THE 1ST RESPONDENT.** **RESPONDENT(S) EXHIBITS:** - **EXHIBIT R3(4) TRUE PHOTOCOPY OF LETTER DATED NO.DB/EZK/2017-18/17/18-7 ISSUED BY THE 2ND RESPONDENT IN THE WRIT PETITION.** - **EXHIBIT R3(5) TRUE PHOTOCOPY OF MEDICAL CERTIFICATE OF PETITIONER'S MOTHER SMT. PB THANKAMANI.** **EXHIBIT R3(6) TRUE PHOTOCOPY OF CERTIFICATE ISSUED TO PETITIONER'S DAUGHTER MISS.PARVATHY BINU.**