Elamma Thomas v. Kerala State Electricity Board & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944** **WP(C) NO. 12560 OF 2013** ## **PETITIONER:** **ELAMMA THOMAS AGED 72 YEARS W/O.THOMAS, CHILAMBATTUSSERIYIL HOUSE, PERUMBAIKKAD.P.O., KOTTAYAM DISTRICT,** **PIN:686016.** **BY ADVS.SRI.P.P.THAJUDEEN SMT.C.SEENA** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM, PIN:695004.** - **2 ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SUB DIVISION, KOTTAYAM, PIN: 686001.** **3 ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, KOTTAYAM EAST-686001.** - **4 ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, KOTTAYAM DISTRICT-686001.** - **5 DEVASSYA.N.C. S/O.CHACKO, NEDUMPARATHALAKKAL, PERUMBAIKKAD.P.O., KOTTAYAM DISTRICT, PIN:686016.** - **6 CHACKO.N.C. S/O.MATHAI, NEDUMPARATHALAKKAL,** W.P.(C.) No. 12560/2013 2 **PERUMBAIKKAD.P.O., KOTTAYAM DISTRICT, PIN:686016.** - **7 SEBASTIAN.N.C.** **S/O.MATHAI, NEDUMPARATHALAKKAL,** **PERUMBAIKKAD.P.O.,** **KOTTAYAM DISTRICT, PIN:686016.** **8 JOSEPH S/O.MATHAI, NEDUMPARATHALAKKAL, PERUMBAIKKAD.P.O., KOTTAYAM DISTRICT, PIN:686016.** **R1 TO R3 BY SRI.RIJI RAJENDRAN,SC** **R4 BY SRI.JOBY JOSEPH,SENIOR GOVERNMENT PLEADER** **R5 TO R7 BY SRI.M.P.MADHAVANKUTTY** ## **BY ADV.SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C.) No. 12560/2013 3 **'C.R.'** ## **JUDGMENT** This writ petition is filed by the petitioner challenging Ext.P2 order passed by the Additional District Magistrate, Kottayam dated 09.05.2013 invoking the powers under Section 16(1) of the Indian Telegraph Act, 1885 and permitted the Kerala State Electricity Board i.e., the first respondent to draw electric lines through the property of the petitioner and other co-owners situated in Re-Survey No. 314/7 of Perumbaikkad village, Kottayam District. It is the case of the petitioner that she is the coowner of 76 ares of property comprised in the aforesaid Resurvey number, being a legal heir of her father, late K.M. Joseph. It is submitted that respondents 5 to 8 unauthorisedly constructed 4 sheds in the property claiming that their grandfather was a kudikidappukaran in the property. Petitioner along with other legal heirs except one, moved the Subordinate Judges Court, Kottayam, filing O.S.No. 62/2012 to evict respondents 5 to 8 as well as for W.P.(C.) No. 12560/2013 4 a permanent prohibitory injunction restraining them from entering into the said property. It is further submitted that respondents 5 to 8 with the connivance of the Electricity Board and its officials started preparation to electrify the four sheds, after drawing electric lines through the petitioner's property. According to the petitioner, the petitioner raised an oral objection against the drawing of electric lines through the property. It is further submitted that since objection was raised by the co-owners of the property, the Assistant Executive Engineer, Electrical Sub Division, Kottayam has approached the Additional District Magistrate invoking the powers conferred under Section 16(1) of the Indian Telegraph Act, 1885 read with Section 164 of the Electricity Act, 2003 and without hearing the petitioner, Ext.P2 order was passed, though other coowners were heard. Therefore, the paramount contention advanced by the petitioner is that, though the other coowners were heard, petitioner being a co-owner was entitled to be heard, and having not done so the order is bad being arbitrary and violative of the principles of natural W.P.(C.) No. 12560/2013 5 justice. It is thus challenging the legality and correctness of Ext.P2, this writ petition is filed. 2. A statement is filed for and on behalf of respondents 1 to 3 refuting the allegations, claims and demands raised in the writ petition. Among other contentions, it is stated that based on the objections filed by One Kuttiamma Georgekutty and her sister, Smt. Chinnamma Thomas (siblings of the petitioner) and the direction of this Court in W.P.(C.) No.6070/2013, the matter was considered by the Additional District Magistrate and has passed Ext.P2 order. It is further pointed out that the pros and cons of the matter with respect to the drawing of the line through the co-ownership property of the petitioner and others was considered in _extenso_ and thereafter, only Ext.P2 order was passed. 3. I have heard Sri. P.P. Thajudeen, learned counsel for the petitioner, Sri.Riji Rajendran, learned Standing Counsel for the Kerala State Electricity Board, Sri.M.P. Madhavankutty, learned counsel for respondents 5 to 7 and Sri. Joby Joseph, Senior Government Pleader for W.P.(C.) No. 12560/2013 6 the fourth respondent and perused the pleadings and material on record. 4. The sole question to be considered is whether any interference is required to Ext.P2 order. As I have pointed out above, the prime contention advanced by the petitioner is that the petitioner being a co-owner of the property, was entitled to be heard as of right. It is well known and well settled in law that a co-owner of a property is an owner of every inch of the property along with others. It is clear from Ext.P2 order that three of the siblings of the petitioner were parties in the proceedings before the Additional District Magistrate. It was after hearing and affording participation to the other co-owners Ext.P2 order was passed. Therefore, it can be seen that even though the petitioner was not a party to the proceedings, the interest of the petitioner being a co-owner of the property also was taken into consideration by the authority, having been protected by the other co-owners. It is not a mandatory requirement that every co-owner of a property has to be heard before taking a decision invoking the powers W.P.(C.) No. 12560/2013 7 conferred under Section 16(1) of the Indian Telegraph Act, 1885. It is also evident that the Additional District Magistrate has conducted a site inspection and has passed the order, after taking into consideration the entire situation that has come to the notice of the Additional District Magistrate and realising that the route suggested by the Assistant Executive Engineer is the most feasible one to draw the lines. It is also evident that the other coowners have suggested an alternate route, which was found to be more expensive and not feasible due to the requirement of cutting more trees. It is also clear that objections were filed by the party respondents. In sum and substance, I am of the considered opinion that the other co-owners substantially protected the interest of the petitioner, and there could not have been any change in the consideration of the matter due to the participation of the petitioner. The contentions advanced by the petitioner in the writ petition is also not suggestive for considering a different contention other than what was contented by the co-owners in the proceedings. The Apex Court considered W.P.(C.) No. 12560/2013 8 the theory of substantial representation in several judgments. 5. In **Mohd. Hussain (Dead) By Lrs. and Others v. Occhavlal and Others [(2008) 3 SCC 233]** , the Apex Court after conducting a thread bare survey of its earlier judgments including a Five Judge Constitution Bench in **N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb [AIR 1966 SC 792]** , held as follows: _“12. It is true that in a suit for redemption of mortgage, all the heirs and legal representatives of the deceased mortgagee are necessary parties but, in the facts and circumstances of the present case, we do not find any reason to agree that in the absence of the two married daughters, the suit could not be maintainable in law, for at least two reasons:_ _i) It was the finding of the first appellate court that at the time of filing of the suit for redemption, one of the mortgagees viz., Nandram was already dead. A finding was also made that one of the married daughters viz., Annapurna was dead. If this finding is accepted, then Annapurna cannot be said to be a necessary party at the time of filing of the suit. So far as the other married daughter viz., Pyaribai is concerned, the finding of the appellate court was to the effect that she was not in occupation of the suit premises nor was she staying with the mortgagee viz., Nandram at the time of his death. Again, if this finding is also accepted, we are not in a position to hold that the suit could not be held to be not maintainable in law_ W.P.(C.) No. 12560/2013 9 _in the absence of the two married daughters._ _ii) Even assuming that the two married daughters of Nandram were necessary parties, then also, we must hold that the interest of the two married daughters in the estate of Nandram was sufficiently represented by their two brothers viz., Manaklal and Motilal._ _13. In N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb and others [AIR 1966 SC 792], this court in paragraph 14 observed as follows:_ _"14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognized exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or_ W.P.(C.) No. 12560/2013 10 _other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion."(emphasis supplied)_ _From a bare reading of the aforesaid observation of this court in the above mentioned decision, it is clear that ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this court culled out some important exceptions: -_ _(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate._ _(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. (iii) The court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record._ _14. We find no difficulty in following the principle laid down by this court in the aforesaid decision. The two sons viz., Manaklal and Motilal, who were also the original mortgagees along with Nandram, being the sons of Nandram, duly represented the estate of the deceased. It was not the case of the defendants/respondents either in the written statement or in_ W.P.(C.) No. 12560/2013 11 _evidence that the two married daughters were not made parties collusively or fraudulently. The suit filed by the appellants only against the two sons of Late Nandram and their sons was not out of fraud or collusion between them. It is also clear from the record that the two sons of Nandram seriously contested the suit and also the appeal filed against the judgment of the trial court before the first appellate court and finally the second appeal in the High Court. Therefore, by no stretch of imagination, it can be said that the suit was filed by the plaintiffs/appellants in collusion or fraud with the two sons of Nandram. Therefore, in the absence of such a defence, it must be held that the estate of Late Nandram, one of the mortgagees, was sufficiently and in a bona fide manner represented by Manaklal and Motilal and there was no fraud or collusion between them and the plaintiffs/appellants and accordingly, the decree that would be passed against Manaklal and Motilal as heirs and legal representatives of Late Nandram also binds the estate even though the two married daughters, who may be interested in the estate, were not brought on record. This view is also supported by the decision of this court in Surayya Begum (Mst) Vs. Mohd. Usman and others [(1991) 3 SCC 114]. In that case, this court in paragraph 9 has observed as follows:_ _"9...This of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he cannot be considered to be a representative.."_ _15. In view of our discussions made hereinabove and following the principles laid down in the aforesaid two decisions_ W.P.(C.) No. 12560/2013 12 _of this court, we are, therefore, of the view that the two sons had sufficiently and in a bona fide manner represented the estate of the deceased Nandram and therefore, the suit could not be dismissed on that ground. It is true that the objection as to maintainability of the suit in the absence of the two married daughters was taken in the suit itself but we should not forget that in view of the findings arrived at by the trial court as well as by the appellate court, the suit of the appellants was decreed which was affirmed at the first appellate stage.”_ Therefore on a perusal of Ext.P2, I do not think that the petitioner has made out any case of illegality or arbitrariness on the ground that petitioner, a co-owner of the property, was not heard. Even though the learned counsel for the petitioner submitted that other co-owners were not adequately heard, in my considered opinion, neither of them have come forward with any grievances stating so, nor is it so reflected in the impugned order; neither are they made parties in the writ petition. So the petitioner is not entitled to raise such claims for and on behalf of the other co-owners. Petitioner has also not raised any collusion, fraud or other similar legal infirmities in the writ petition for not making the petitioner a party in the proceedings before the statutory authority to taint the W.P.(C.) No. 12560/2013 13 impugned order and make it an arbitrary and illegal one requiring any interference in a proceeding under Article 226 of the Constitution of India. The writ petition fails and accordingly, it is dismissed. However, I make it clear that by the dismissal of the writ petition, I have not considered any issues raised by the petitioner in the writ petition concerning the Kudikidappu rights claimed by respondents 5 to 8; and the rival contentions accordingly. Sd/- **SHAJI P. CHALY JUDGE** DCS/17.01.2023 W.P.(C.) No. 12560/2013 14 ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE PHOTOCOPY OF THE PLAINT FILED BEFORE THE SUB COURT, KOTTAYAM. EXHIBIT P2 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 9.5.2013. EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 18.5.2013 SUBMITTED BEFORE THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE RECEIPT ISSUED BY THE THIRD RESPONDENT DATED 18.5.2013. RESPONDENT'S ANNEXURE** **ANNEXURE R2(a) TRUE COPY OF THE SKETCH SHOWING THE ROUTE**