Leena S. Raj D/o Sivaraj vs Kerala State Electricity Board & N. Jayachandran v Addl. District Magistrate Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** # **WP(C).No.4761 OF 2018(U)** ## **PETITIONER/S:** **LEENA S RAJ D/O.SIVARAJ, LEENALYAM, ERAM CHERRY, KARAMCODE P.O., CHATHANNUR, KOLLAM.** **BY ADV. SRI.V.PREMCHAND** ## **RESPONDENTS:** **1 THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695001.** - **2 THE ADDL. DISTRICT MAGISTRATE, KOLLAM-691013.** - **3 THE ASST. EXECUTIVE ENGINEER ELECTRIC SUB DIVISION, KERALA STATE ELECTRICITY BOARD, CHATHANNUR P.O., KOLLAM-691572.** - **4 JAYACHANDRAN S/O.NARAYANAN ACHARY, MANI VEEDU, KARAMCODE P.O., CHATHANNUR, KOLLAM.** **R4 BY ADV. SRI.SAJU J PANICKER** **SRI A. ARUNKUMAR SC, SMT POOJA SURENDRAN GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2020, ALONG WITH WP(C).6682/2018(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.4761-18& 6682-18 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **WP(C).No.6682 OF 2018** ## **PETITIONER:** **N.JAYACHANDRAN AGED 49,S/O. NARAYANAN ACHARI, MANI VEEDU,KARAMOODU.P.O., MEENAD, KOLLAM** **BY ADV. SRI.SAJU J PANICKER** ## **RESPONDENTS:** **1 THE ADDITIONAL DISTRICT MAGISTRATE KOLLAM - 691 001 2 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, CHATHANOOR, KOLLAM 3 THE VILLAGE OFFICER MEENAD VILLAGE, KOLLAM-691 001 4 LEELA AGED 48,D/O. SIVARAJAN,LEENALAYAM, CHATHANOOR, ERAM, MEENAD, KOLLAM R4 BY ADV. SRI.K.SUBASH CHANDRA BOSE R2 BY SRI.ARUNKUMAR A., SC, KSEB BY ADV. SRI.V.PREMCHAND SMT.POOJA SURENDRAN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2020, ALONG WITH WP(C).4761/2018(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.4761-18& 6682-18 3 ## **JUDGMENT** ## **[ WP(C).4761/2018, WP(C).6682/2018 ]** W.P.(C).No.4761 of 2018 is filed challenging Ext.P9 order passed by the Addl. District Magistrate under Section 16(1) of the Telegraph Act. W.P.(C).No.6682 of 2018 is also preferred challenging the very same order however limiting the same to certain observations made by the Additional District Magistrate. 2. Parties shall be described in the manner that they are described in WP(C).No.4761 of 2018. 3. Brief facts which are necessary to be noticed are that the petitioner is the owner in title and possession of 12 cents of property comprised in resurvey No.176/17 of Meenad village. The 4[th] respondent is her neighbour and he along with his family members are residing on the western side of the petitioner's property. On the northern side of the property lies the pubic road. It is contended by the petitioner that at her request 4 electric posts numbering MVK/31, MVK/31-1, MVK 31-2, MVK 31-3 were erected on the western side of the pathway leading to her property from the northern public road for the purpose of providing a WP(C).Nos.4761-18& 6682-18 4 service connection. According to the petitioner, the expenses for erecting the post and for drawing the line was expended by the petitioner. While so, disputes occurred between the petitioner and the 4[th] respondent which led to the petitioner instituting O.S.No.211/2011 before the Civil Court. The suit was one for injunction restraining the 4[th] respondent and his siblings from demolishing the mud boundary wall separating the properties. While the proceedings were pending the parties arrived at a compromise and a judgment and decree was passed accordingly. When the respondents failed to comply with the directions issued, the petitioner moved an execution petition. While so, the 4[th] respondent allegedly trespassed into the property which led to the institution of a criminal complaint. According to the petitioner, the 4[th] respondent with a view to inconvenience her, approached the 3[rd] respondent and applied for an electric connection. The petitioner raised objection and the dispute was referred to the 2[nd] respondent by the 3[rd] respondent. She contended that instead of drawing the line from the posts situated in the western side of her property, the line could have been drawn along the posts situated on the northern side and marked as MVK 30 and MVK 31. According to the petitioner, the 2[nd] respondent without appreciating the contentions and without taking note of the objections raised by the petitioner herein has passed Ext.P9 order in a perfunctory manner. The petitioner has WP(C).Nos.4761-18& 6682-18 5 therefore sought for setting aside Ext.P9 order and also for a further direction to the respondents 1 to 3 to refrain from drawing the electric line from Post No. MVK 31-1, crossing the property of the petitioner and also for a further direction to the respondents 1 and 3 to draw the electric line either from MVK 30 or MVK 31, which are situated on the northern side of the property of the 4[th] respondent. 4. The 4[th] respondent has filed Writ Petition No.6682 of 2018 challenging that part of the order of the 2[nd] respondent by which he has put a rider that the permission to draw electric line shall be subject to the decision of the Civil Court. According to the 4[th] respondent, the said direction was issued since an influential politician, who was also a local member, had issued a letter to the 2[nd] respondent to consider the grievance of the petitioner in W.P.(C) No. 4761 of 2018 while considering the request made by the licensee under Section 16 of the Telegraph Act. According to the 4[th] respondent, the line if drawn as per the proposal of the 2[nd] respondent will never cross the property of the obstructor and no such observation was warranted. 5. Sri.V. Prem Chand, the learned counsel appearing for the petitioner in W.P.(C) No. 4761/2018 relied on a judgment of this Court in **Induchandran and others v. KSEB[1]** and it is argued that this Court 1 [2017(3) KHC 746] WP(C).Nos.4761-18& 6682-18 6 will be well justified in interfering with the discretion exercised by the Addl. District Magistrate since the order is non-speaking, irrational and as it suffers from procedural impropriety. According to the learned counsel, providing the service line through the northern post is more economically and technically feasible. 6. Sri.Saju J Panicker, the learned counsel appearing for the 4[th] respondent, who is the writ petitioner in W.P.(C).No.6682/2018, contended that the rider placed by the Addl.District Magistrate that the order granting permission to draw the line would be subject to the result of the civil suit is liable to be interfered with. 7. The Standing Counsel appearing for the 3[rd] respondent submits that if the line were to be drawn from the post situated on the eastern side, i.e., from MVK 31-1, service connection could be granted by providing a weather proof line of 25 metres. The expenses for the same would be under Rs.2000/-. On the other hand, if the lines were drawn from the norther side, one post will have to be erected between MVK 30 and 31 from which post a overhead line will have to be drawn. Another post will have to be erected in the property of the 4[th] respondent from where, a weather proof line of 25 metres will have to be drawn. The expenses involved will be not less than Rs.20,000/-. According to the 3[rd] respondent, drawing the line through MVK 31-1 is the most feasible, WP(C).Nos.4761-18& 6682-18 7 economically and technically. 8. I have considered the submissions advanced and have perused the records. 9. I find that the 2[nd] respondent had conducted a site inspection and had perused the entire records. The sketches prepared by the 3[rd] respondent have been produced by the petitioner herein as Ext.P6. It appears that the 2[nd] respondent has considered the entire facts in its proper perspective and had permitted the 3[rd] respondent to draw the line as per the first proposal. 10. The contention of the petitioner that as she had borne the expenses for erecting MVK 31-1, supply cannot be provided to the 4[th] respondent cannot be accepted. Regulation 24 of the Kerala Electricity Supply Code, 2014 states that the whole of service line metre and other associated equipment shall be deemed to be the property of the licensee and shall remain under his control as long as they are connected to the distribution system of the licensee. Sub clause (2) of regulation 24 states that the licensee may use the service line and other apparatus to give supply to other consumer if the supply to the consumer who has paid for such line and apparatus is not affected adversely. No one has a case that the supply to the petitioner would be affected adversely if line is drawn from post marked as MVK 31-1. WP(C).Nos.4761-18& 6682-18 8 In **Valsamma Thomas v. Additional District Magistrate[2]** , 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 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. - 2 [1997 (2) KLT 979] WP(C).Nos.4761-18& 6682-18 9 (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. 11. As held by this Court in **Indu Chandran and Ors. v. KSEB, Thiruvananthapuram[3]** , 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 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 3[rd] respondent. I am also unable to find fault with the 2[nd] respondent for putting a rider that the order passed by him shall be subject to the result of the civil suit 3 (2017 (3) KLT 420) WP(C).Nos.4761-18& 6682-18 10 pending between the parties. In that view of the matter, no interference is warranted. These Writ Petitions will stand dismissed. There will be no order as to costs. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** IAP WP(C).Nos.4761-18& 6682-18 11 ## **APPENDIX OF WP(C) 4761/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE LAND TAX RECEIPT IN THE NAME OF PETITIONER DATED 19-092017.** **EXHIBIT P2 TRUE COPY OF THE ADALATH DECREE AND THE JUDGMENT IN THE SUIT IN O.S.NO.211 OF 2011.** **EXHIBIT P3 TRUE COPY OF THE FIR IN CRIME NO.0842 OF 2016.** - **EXHIBIT P4 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE DISTRICT COLLECTOR ON 11-12-2017.** - **EXHIBIT P5 TRUE COPY OF THE ROUGH SKETCH SHOWING THE PROPERTIES OF PETITIONER, 4TH RESPONDENT AND HIS BROTHERS AND SISTER AND THE EXISTENCE OF ELECTRIC POSTS.** - **EXHIBIT P6 TRUE COPY OF THE MISLEADING SKETCH SUBMITTED BY THE 3RD RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 26-082017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED 19-092017.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 03-02-2018 PASSED BY THE 2ND RESPONDENT AND RECEIVED BY THE PETITIONER ON 10-022018.** WP(C).Nos.4761-18& 6682-18 12 ## **APPENDIX OF WP(C) 6682/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER** **EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 2ND RESPONDENT BY THE 4TH RESPONDENT** **EXHIBIT P3 THE TRUE COPY OF THE PETITION DATED 10.8.2017 FILED BEFORE THE 1ST RESPONDENT BY THE PETITIONER** **EXHIBIT P4 THE TRUE COPY OF THE OBJECTION FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT** **EXHIBIT P5 THE TRUE COPY OF THE REPORT AND ROUTE MAP SUBMITTED BEFORE THE 1ST RESPONDENT BY THE 2ND RESPONDENT** **EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT AND THE TERMS OF SETTLMENT** **EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 3.2.2018 OF THE 1ST RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE LETTER DATED 14.12.2017 ISSUED BY THE MEMBER OF THE LEGISLATIVE ASSEMBLY, CHATHANOOR**