Johny E.C. v. Addl. District Magistrate, Ernakulam & Kerala State Electricity Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932** **WP(C).No. 34147 of 2010(P)** **--------------------------** **PETITIONER(S):** **----------------------** **JOHNY E.C., S/O. CHACKUNNI, AGED 60, ELANJIPPILLY HOUSE, MELADOOR P.O., ALATHUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REP.BY HIS BROTHER AND POWER OF ATTORNEY HOLDER, JACOB E.C., AGED 54 YEARS.** **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA** **RESPONDENT(S):** **------------------------** **1. THE ADDL. DISTRICT MAGISTRATE, ERNAKULAM, COLLECTORATE, KAKKANAD, ERNAKULAM, KOCHI-30.** **2. KERALA STATE ELECTRICITY BOARD, REP.BY ITS ASSISTANT EXECUTIVE ENGINEER, TRANSMISSION SUB DIVISION, KSEB OFFICE COMPLEX, CHALAKUDY, PIN-680 307.** - **R1 BY GOVERNMENT PLEADER MR.K.S.SANTHOSH R2 BY STANDING COUNSEL MR.P.P.THAJUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010 ALONG WITH W.P.(C)Nos.34148/2010 & 34216/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **C.T.RAVIKUMAR, J. --------------------------W.P.(C) Nos.34147, 34148 & 34216 of 2010** ## **----------------------------------Dated this the 12[th] day of November 2010** ## **J U D G M E N T** In all these writ petitions the petitioners challenge the common order passed by the Additional District Magistrate, Ernakulam in the matter of drawing of a 33KV Feeder Line from Kurumassery to Annamanada. Since its proposed route was over their properties, petitioners raised objection with respect to the said proposal. Thereupon, the Assistant Executive Engineer, Transmission Sub Division of the KSEB based on the objections raised by the petitioners herein, filed a petition under Section 16(1) of the Indian Telegraph Act, 1885 read with Section.164 of the Indian Electricity Act, 2003 to remove the resistance and obstruction before the District Magistrate, Ernakulam. Thereupon, the impugned order in these writ petitions, viz; Ext.P5 in W.P.(C)No.34148/2010 and W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 2 :- Ext.P8 in W.P.(C)No.34216/10 which is a common order, has been passed by the Additional District Magistrate, Ernakulam. In the other writ petition. the contention of the petitioners is that on their objection no order has been passed by the Additional District Magistrate. However, Exts.P5 and P8 viz; the impugned common order would reveal that the objection of the petitioners in W.P.(C)No.34147/2010 was also considered and in fact the same was also rejected by the said common order. 2. Before adverting to the contentions raised by the learned counsel appearing for the petitioners in these writ petitions, I may have to consider the circumstances under which the Additional District Magistrate, Ernakulam has passed the above impugned common order. For the petitioners in W.P.(C)Nos.34147/10 and 34148/10 this is the second round litigation and as regards the petitioners in W.P.(C)No.34216/2010, this is the third round litigation, on the aforesaid issue. The original orders passed by the ADM on the same subject matter were subjected to challenge in a W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 3 :- batch of writ petitions. As per a common judgment, produced as Ext.P3 in W.P.(C)No.34148 of 2010, the impugned orders permitting the Board authorities to draw the electric lines through the proposed route were set aside. This Court found those orders as unsustainable since there was no proper application of mind. Accordingly, the ADM was directed to pass fresh orders after conducting a site inspection and after affording an opportunity of being heard to all concerned including the petitioners in those writ petitions. As per Ext.P3, it was directed to pass fresh orders within one month from the date of receipt of a copy of the judgment. Pursuant to the said common judgment, the 4[th] respondent herein conducted a local inspection of the concerned site and passed the impugned common order viz; Exts.P5 and P8 referred above. 3. The facts expatiated above would thus reveal that the impugned common order has been passed by the 4[th] respondent in purported compliance with Ext.P3 common judgment. They would also reveal that the earlier order W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 4 :- passed by the ADM on the matter was set aside by this Court as per Ext.P3 holding that the impugned orders were passed with a closed mind. The above prelude will enable this Court to examine the sustainability or otherwise of the impugned order in a proper perspective. True that the common order presently impugned in these writ petitions is a lengthy one. However, a close scrutiny of the same would reveal that the contentions raised by the petitioners were not properly considered by the ADM. A perusal of the order would reveal that the objections raised by the petitioners as also the reply to such objections made by the Board Officials were duly taken note of by the ADM. In Sl.Nos.1 and 2 at page No.3 of the impugned order, the respective objections of petitioners 1 to 3 in W.P.(C)No.34148/2010 and the replies to those objections by the Assistant Executive Engineer, Transmission Sub Division, KSEB Chalakudy were incorporated. At Sl.No.3 in the same page the respective objection and reply in the case of the petitioner in W.P.(C)No.34147/2010 were duly taken note of. Likewise, at Sl.No.4 in page No.4 of the W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 5 :- impugned order the objection of the petitioner and its reply were incorporated. However, the consistent case of the petitioners in all these writ petitions is that their actual objections and suggestions were not properly looked into by the ADM. Evidently, as per the petitioners in W.P.(C) No.34148/2010 the alternative route suggested by them would pass through a paddy filed and in which event, it will not entail cutting and removing of any trees. As regards, the petitioner in W.P.(C)No.34147 of 2010 his grievance is that the proposed route passes through the middle of his property that abounds with valuable fruit bearing and commercially valuable trees. According to him, drawing of lines as proposed would result in cutting and removing of a large number of trees. Ext.P3(a) which is a list of trees required to be cut and removed from his property prepared and served on him by the Assistant Executive Engineer would reveal that the contention is not without any basis. The petitioner in W.P.(C) No.34216 of 2010 is a Sabha viz; the Kerala Viswakarma Sabha. According to them the proposed route would disable W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 6 :- them from constructing a building for their office and the proposed nursery school. The contention of petitioners in W.P.(C)No.34147/2010 and W.P.(C)No.34216/2010 is that instead of drawing the lines through their properties it could be drawn through a road/pathway without causing any damage to any of the properties. It is true that in the matter of drawing of electric lines for a purpose like the present one viz; drawing of 33KV Feeder Line from Kurumassery to Annamanada, private interests have to give way to public interest. In the context of the contentions of the petitioners, it is relevant to refer to a statement made by the Assistant Executive Engineer recorded by the ADM in the impugned order which runs as follows :- “The total length of 33 KV line from Kurumassery Sub station to the newly constructed Annamanada Sub station is 9 kilo metres. Out of which only about 250 metres of the line will be passing through residential area, rest of the line is passing through paddy fields and along public roads” (Emphasis supplied) If that be the case of the Board Officials the ADM should have W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 7 :- considered the feasibility of the alternative routes suggested by the petitioners which according to them will pass through paddy fields/roads/path ways. 4. But, the question is whether objections and suggestions made by the petitioners were considered by the ADM while passing the impugned order. In fact, without considering any of such objections and suggestions of the petitioners, that too despite the specific direction by this Court in Ext.P3 judgment for such consideration, the ADM has issued the impugned common order. The said action indeed, is highly depreciative and censurable. In fact, without considering the objections and the alternative routes suggested by the petitioners, the ADM has merely relied on the judgment of this Court in W.P.(C)No.3278/2010 taking into account a mass petition dated 18.9.2010 submitted against the proposal of changing the alignment of 33KV line through 'Kadathukadavu Vazhi'. True that there cannot be any doubt with respect to the position that private interest has to give way to public interest. But, in this case such a W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 8 :- view was taken by the ADM solely on the basis of a mass petition submitted by certain passes that too, against the proposal of changing the alignment of 33KV line through 'Kadathukadavu Vazhi'. In fact, the statement in the impugned order would reveal the existence of a proposal to change the alignment of 33KV line through 'Kadathukadavu Vazhi'. At any rate, the action on the part of the ADM in disregarding the specific direction of this Court in Ext.P3 judgment and passing the impugned order in a perfunctory manner merely by narrating the objections of the petitioner and the replies, remarks and opinion of the Assistant Executive Engineer, before him up to the last paragraph in page No.7 of the impugned order cannot be considered at all as an order passed in compliance with Ext.P3 judgment. So also, it cannot be treated as an order issued in true discharge of the power under 16(1) of the Act. 5. It is unfortunate to say that except the narration of the objections and suggestions of the aggrieved parties and also the replies, remarks and the opinion of the Assistant W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 9 :- Executive Engineer, the order carries no independent consideration of the ADM. In fact, there is no consideration at all of such objections and suggestions. There could not be any doubt that when an authority is clothed with a power to take a decision affecting the rights of citizens that authority is supposed to decide the matter by applying the mind. 6. Though the learned Standing Counsel and Government Pleader vehemently opposed the contentions raised by the petitioners, they, despite their earnest endeavour, could not detect anything in the impugned order which would suggest that the impugned common order was passed in terms of Ext.P3 judgment and with application of mind. While exercising the powers under Section 16(1) of the Telegraph Act the concerned authority has to bear in mind that the power conferred under Section 16(1) of the Indian Telegraph Act read with Section 164 of the Indian Electricity Act is not one just to consider the proposal by the KSEB and to accept or reject the same (see the decisions of this Court in **Manikkam** v. **Assistant Registrar** reported in [2008(1) W.P.(C) Nos.34147, 34148 & 34216 of 2010 -: 10 :- KLT 647]). In fact, while exercising the jurisdiction, wherever possible, a balance will have to be achieved between the objections, grievance and the technical as well as the techno ecological feasibility of altering the route. In view of the above discussions, I am of the view that the impugned common order viz; Ext.P5 in W.P.(C) No.34148 of 2010 and Ext.P8 in W.P.(C)No.34216 of 2010 are liable to be set aside and it is accordingly set aside. The matter requires a further re-examination with proper application of mind with a proper exercise of power. The above observations are made with a view to make 4[th] respondent to alert while deciding the matter and to stress upon the need to pass orders under Section 16(1) of the Telegraph Act with proper application of mind and in the manner required to exercise the power conferred under the said provision. The 4[th] respondent shall pass fresh orders in place of the impugned common order. This shall be done by the 4[th] respondent as expeditiously as possible at any rate, within six weeks from the date of receipt of copy of this W.P.(C) Nos.34147, 34148 & 34216 of 2010 **==> picture [37 x 9] intentionally omitted <==** judgment. To enable the ADM to pass fresh orders within the stipulated time limit the parties are free to produce copy of this judgment before the said authority. It is made clear that the 4[th] respondent shall rehear the matter and pass fresh orders after affording an opportunity of being heard to all the parties concerned. It will also be open to the ADM to conduct further site inspection if necessary. Writ petitions are disposed of accordingly. ## **C.T.RAVIKUMAR, JUDGE.** Jvt