G. Vasanthakumari Amma & K. Muraleedharan Nair v. District Collector and District Magistrate, Kollam; Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **THURSDAY, THE 18TH DAY OF OCTOBER 2012/26TH ASWINA 1934** ## **WP(C).No. 35130 of 2009 (I)** **---------------------------** **PETITIONER(S): ------------------------** **1. G.VASANTHAKUMARI AMMA, DEVI AUTOMOBILES, PUNNAMUKKU, KUNDARA, KOLLAM DISTRICT.** ## **2. K.MURALEEDHARAN NAIR,** **DEVI AGENCIES, KUNDARA, KOLLAM DISTRICT.** **BY ADVS. SRI.ELVIN PETER P.J. SMT. POOJA SURENDRAN** **RESPONDENT(S):** - **----------------------------** **1. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KOLLAM.** **2. THE ASSISTANT EXECUTIVE ENGINEER, TRANSMISSION CONSTRUCTION SUB DIVISION KERALA STATE ELECTRICITY BOARD, KUNDARA, KOLLAM DISTRICT.** **3. KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** **4. A. RAJASEKHAR, THENCOTTUPUTHEN VEEDU, PUNNAMUKKU, PERUMPUZHA, KUNDARA, KOLLAM DISTRICT.** **`** **..2/-** **Kss** **..2....** ## **WPC.NO.35130/2009 I** ## ***ADDL.R5 TO R7 IMPLEADED:** ## **R5. PREMKUMAR R., S/O K.RAJAN, KUMAR BHAVAN, PUNNAMUKKU, PERUMPUZHA, KUNDARA, KOLLAM DISTRICT.** **(*ADDL. R5 IS IMPLEADED AS PER ORDER DATED 22/02/2010 IN IA. NO.2004/2010)** - **R6. SMT.ANANTHA PARVATHI, W/O A. RAJASHEKHAR , AGED ABOUT 50, THENCOTTU PUTHEN VEEDU, PUNNAMUKKU WEST, PERUMPUZHA, KUNDARA, KOLLAM DISTRICT.** **R7. SRI.BALAKRISHNAN SHEKHAR, S/O. LATE A.RAJASHEKHAR, AGED ABOUT 22, THENCOTTU PUTHEN VEEDU, PUNNAMUKKU WEST, PERUMPUZHA,KUNDARA, KOLLAM DISTRICT.** - **(*ADDL. R6 AND R7 IARE IMPLEADED AS PER ORDER DATED 13/02/2012 IN IA. 1881/12)** **R1 BY GOVERNMENT PLEADER SRI. THOMAS JOHN AMBOOKAN R2,R3 BY SRI.P.SANTHALINGAM,SENIOR ADVOCATE R2,R3 BY ADV. SRI.S.SHARAN,SC,K.S.E.BOARD R2,R3 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R2,R3 BY ADV. SRI.C.K.KARUNAKARAN, SC,KSEB R4 BY SRI.T.KRISHNANUNNI,SENIOR ADVOCATE R4 BY ADV. SRI.SAJU.S.A ADDL.R5 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2012, THE COURT ON 18/10/2012 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.35130/2009 I** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE PLAN IN WHICH THE EXISTING 66 KV LINE WAS ESTABLISHED.** - **P2: COPY OF THE COMPLAINT DTD. 1/03/2004 FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT.** - **P3: COPY OF THE REPORT DTD.2/04/2004 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** - **P4: COPY OF THE REPORT DTD. 30/06/2004 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** - **P5: COPY OF THE PETITION DTD. 29/10/2004 FILED BY THE 1ST PETITIONER BEFORE THE RESPONDENTS.** - **P6: COPY OF THE REPORT DTD. 22/01/2005 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** - **P7: COPY OF THE PETITION DTD. 14/02/2005 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.** - **P8: COPY OF THE ORDER DTD. 23/03/2005 OF THE 1ST RESPONDENT.** - **P9: COPY OF THE JUDGMENT DTD. 8/11/2005 IN WPC.NO.12335/2005 OF THIIS HON'BLE COURT.** - **P10: COPY OF THE OBJECTION DTD. 11/01/2006 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.** - **P11: COPY OF THE REPORT DTD. 11/01/2006 FILED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** - **P12: COPY OF THE ORDER DTD. 17/03/2006 ISSUED BY THE 1ST RESPONDENT.** - **P13: COPY OF THE JUDGMENT DTD. 15/07/2009 IN WPC.NO.10656/2006 OF THIS HON'BLE COURT.** - **P14: COPY OF THE JUDGMENT DTD. 30/09/2009 IN W.A.NO.2059/2009 OF THIS HON'BLE COURT.** **..2/-** **Kss** **..2....** ## **WPC.NO.35130/2009 I** - **P15: COPY OF THE HEARING NOTE DTD. 7/11/2009 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.** - **P16: COPY OF THE PROCEEDINGS DTD. 13/11/2009 ISSUED BY THE 1ST RESPONDENT.** - **P17: COPY OF THE DEED DTD. 22/09/1993 OF THE PETITIONERS.** - **P18: COPY OF MEMORANDUM OF WRIT PETITION, WPC.NO.26355/2005 FILED BY THE K.S.E.BOARD BEFORE THIS HON'BLE COURT.** - **P19: COPY OF THE COUNTER AFFIDAVIT FILED BY THE KSE.BOARD IN WPC.NO.10656/2006 BEFORE THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS:** **R1(A): COPY OF THE SKETCH DETAILS OF LOCATION NO.3 OF KUNDARAPARIPPALLY 110 KV OC LINE.** **R2(A): PHOTOGRAPHS SHOWING THE TEMPORARY SHEDS OF THE PETITIONIERS.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** **“CR”** ## **B.P. Ray, J.** ==================================== ## W.P.(C)No.35130/2009 ==================================== Dated this the 18[th] day of October, 2012. ## **JUDGMENT** ## 1. Petitioners have filed this writ petition with the following prayers: “i) to issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P16 and quashing the same; ii) to declare that Ext.P16 is one issued without any authority of law and the same is void and nonest; and iii) to grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case including costs.” ## 2. The grievance of the petitioners is that the District Collector, Kollam has illegally directed the Kerala State Electricity Board to erect a tower for drawing 110 KV line in the petitioners' property as against the original profile of the KSEB to erect a tower in the property of the deceased fourth respondent. The admitted fact is that the Board prepared a profile to draw 110 KV line from Paripilly to Kundara. As per the profile, tower to be erected in Location No.3 was in the property of the deceased 4[th] respondent. Thereafter, the fourth respondent filed a complaint before the first respondent District W.P.(C)No.35130/2009 -:2:- Collector against the erection of a tower in his property. The allegation of the 4[th] respondent is that there already exists a 66 KV tower in the property of the petitioners and therefore the tower for 110 KV line can be erected in the very same location and not in the property of the 4[th] respondent. The Board filed Exts.P3, P4 and P11 objections before the first respondent stating that Location No.3 marked in the original profile in the property of the 4[th] respondent is the most technically feasible and economically viable to the Board. The Board also stated that there are 87 locations where the towers are to be erected for 110 KV line. All the towers are constructed in new locations and not in the location where the existing 66 KV line towers are erected. The construction of all the towers is completed, except Location No.3. The Board also stated that the height difference between the property of the 4[th] respondent and the petitioners is almost two metres. Therefore, if a tower is to be erected in the property of the petitioners, the tower for 220 KV may have to be erected for which the base area would be about 169 square metres. If such a tower is to be erected in the property of the W.P.(C)No.35130/2009 -:3:- petitioners, the permanent buildings has to be demolished. Hence, in all aspects, the route mentioned in the original profile alone is feasible and viable. The Board also contended that the profile was prepared taking into consideration all relevant aspects and also keeping in mind the provisions of Section 10(d) of the Indian Telegraph Act in its correct spirit, that is to say, to do as little damage as possible while erecting the tower. However, the District Collector, without considering the contentions of the petitioners and the Board passed Ext.P12 order dated 17.3.2006 overruling the contentions of the petitioners and the Board and directed the Board not to take steps to erect the tower in the property of the 4[th] respondent. Petitioners filed W.P.(C)No.10656/2009 before this Court and this Court vide Ext.P13 judgment quashed Ext.P12 order and directed the first respondent to pass a fresh order exercising his powers under Section 16 of the Indian Telegraph Act as interpreted in the judgments reported in Mammo v. State of Kerala (1979 KLT 801 (F.B) and Kunjulakshmi v. District Magistrate (1986 KLT 1320). The fourth respondent preferred W.A.No.2059/2009 before W.P.(C)No.35130/2009 -:4:- this Court and a Division Bench of this Court disposed of the appeal directing the first respondent to consider the matter in accordance with law untrammelled by the observations made by the learned single Judge in Ext.P13 judgment. Thereafter, after hearing the parties, the first respondent passed Ext.P16 order directing the Board to erect tower in the property of the petitioners. Therefore, the petitioners have filed this writ petition to quash Ext.P16 order. 3. Respondents 6 and 7 are the legal heirs of deceased 4[th] respondent in the present writ petition. The fourth respondent together with the 6[th] respondent owns an extent of 35 cents in Elampalloor village. The petitioners in the writ petition purchased an extent of 73 cents on the western side of the plot from the sister of the mother-in-law of the 4[th] respondent. At the time of purchase, both the plots were lying as a single compact plot in the same level. In the property of the 4[th] respondent a new residential building was constructed. There is yet another residential building in existence in the said plot. After purchase by the petitioners in the writ petition, they lowered the level of their property having an extent of 73 cents by about 2.5 metres W.P.(C)No.35130/2009 -:5:- removing the soil and effected constructions like sheds and garages for their commercial activities. A very ancient 66 KV line was passing through the property purchased by the petitioners with a tower erected in the property. On account of the removal of soil, basement of the tower became exposed and the petitioners strengthened the base by additional support of R.C.C. The local officials of the Board did not object the petitioners in doing the same. On account of upgradation of line, petitioners wanted the tower to be relocated to the property of the 4[th] respondent. The local officials of the KSEB, Kundara initially supported their plan and proposed a profile of the new line in such a way that the tower location was decided to be shifted to the property of the 4[th] respondent. The distance between the said proposed tower location and the new house of the 4[th] respondent would be less than 18.5 metres which is within the falling distance of the said proposed tower. There is also another building occupied by a stranger very near to the boundary walls and which is situated hardly 10 metres away from the said proposed tower. It is under the above circumstances that the 4[th] respondent W.P.(C)No.35130/2009 -:6:- objected the said proposal submitted by the officials of the KSEB, Kundara. In the meantime, the Board filed a representation on 2.4.2004 before the District Collector. The 4[th] respondent raised serious apprehensions of foul play in the stand taken by the KSEB. It was contended by the 4[th] respondent that the local officers of the Board are colluding with the petitioners. Therefore, the District Collector decided to obtain an independent and impartial report from the Chief Electrical Inspector of the Government of Kerala. Thereupon, the Chief Electrical Inspector inspected the site and after properly considering all the aspects of the matter submitted a detailed report before the District Collector. The Chief Electrical Inspector of the Government of Kerala in his expert opinion stated in his report that there is no need for shifting the existing tower to another location as it is only an upgradation. The Assistant Executive Engineer of the KSEB Sri.N.Nagarajan who participated in the hearing conducted by the District Collector also stated that the proposed tower can be erected in the existing location of 66 KV tower. Taking into account the aforesaid report of the Chief W.P.(C)No.35130/2009 -:7:- Electrical Inspector and the Assistant Executive Engineer of the KSEB, the District Collector, Kollam has passed Ext.P16 order. The order Ext.P16 has been passed by the District Collector after properly considering all the aspects of the matter. Therefore, no interference is necessary. During pendency of the writ petition, in pursuance to the direction of this Court, the Member (transmission) of the Board Mr.Mohammed Ali Rawther, who is the Chief Technical Officer of the Board in Transmission of the electrical energy, conducted an inspection of the site in March, 2012 along with the Deputy Chief Engineer of the Board and submitted a report regarding the feasibility of construction of 110 KV tower in the existing location of 66 KV tower as it is only an upgradation. In pursuance to the interim order passed by this Court, a sketch has been prepared by the Board after visiting the site regarding the location of present tower to be erected in the property of the petitioners as well as respondents 6 and 7 and it will cause less inconvenience to the petitioners as the present tower was totally on the property of the petitioners. Learned counsel for the petitioners W.P.(C)No.35130/2009 -:8:- vehemently argued that in view of the decisions cited above, the Additional District Magistrate has no jurisdiction to direct the Board to erect a tower in a different property as against the location fixed by the Board in the original profile. In the said Full Bench decision it was held that the District Magistrate has only the power to remove the obstructions, if any, in the matter of drawing of line or erection of tower. The adjudication would not cover the question whether line is to be drawn over any specific item of property or whether posts are to be erected or not in any specific item of property. Therefore, Section 16 does not vests power with the Additional District Magistrate to exercise the discretion vested in him under Section 16 of the Act. Therefore, the direction to draw the line is not feasible. Learned standing counsel for the Board submits that keeping in view the mandate of Section 10, the impugned order has been passed and the Chief Electrical Inspector of the State has opined to draw the line in the existing location and in pursuance to the direction of this Court also survey was conducted and it was found that the most suitable location is to erect the tower in the property of the petitioner well as W.P.(C)No.35130/2009 -:9:- respondents 6 and 7 as indicated in the sketch Ext.R2(a). Therefore, it will cause less inconvenience to the petitioners as well as respondents 6 and 7. Hence, I have no hesitation to hold that the decision taken by the Board to erect the tower as per Ext.R2(a) sketch is beneficial to the petitioners as well as respondents 6 and 7. I, accordingly, modify the order Ext.P16 and direct the respondent Board to erect the tower and draw the line as indicated in Ext.R2(a) sketch. Writ petition is disposed of accordingly. sl. **B.P. Ray, Judge.**