High Court of KeralaSingle Judge2014-01-02Writ petition allowed; Ext.P5 quashed; remand f...

Malachi and others v. Additional District Magistrate Kollam and others

Case / Petition Number:WP(C).No. 27679 of 2013 (H)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. K. Abdul Rehim
Judgment Date: 2014-01-02
Court Decision / Holding: Writ petition allowed. Ext. P5 quashed. The 1st respondent is directed to dispose of the matter afresh after affording personal hearing to all petitioners and other affected parties. A site inspection should be conducted if necessary to assess the feasibility of the alternate route. The matter must be disposed of within two months from receipt of a copy of this judgment. If the alternate route suggested by the petitioners is feasible, the line drawn through the petitioners’ property shall be dismantled and a new line drawn through the alternate route at the beneficiary’s expense.
Final Disposition: Writ petition allowed; Ext.P5 quashed; remand for fresh consideration with opportunity for personal hearing and possible site inspection; dismantling order if alternate route feasible and expense borne by beneficiary; to be completed within two months from judgment date.

Parties to the Case

Appellants / Petitioners

Malachi s/o Israyel
Estherkutty w/o Samkutty
Selvarajan s/o Israyel
Mariyam w/o late Israyel
Samkutty h/o Estherkutty

Respondents

Additional District Magistrate Kollam Collectorate, Civil Station, Kollam District
Assistant Executive Engineer, KSEB, Electrical Sub Division, Veliyam Kollam District
Jayavathy Das Bhavan, Ottumala, Kattadi P.O., Kollam District

Legal Representation & Advocates

Counsels for Petitioners

• Sri A.K.Gopalan
• Sri.V.N.Mohan Raj
• Smt.Limna Bhaskarain

Counsels for Respondents

• Sri.Sajeevkumar K. Gopal, SC, KSEB

Case Synopsis & Summary

This writ petition concerns the drawing of an electric distribution line through the joint property of the petitioners, legal heirs of the late Israyel, to supply electricity to the third respondent. The 1st respondent invoked Section 16(1) of the Indian Telegraph Act and issued notices to affected landowners. While the petitioners objected that the proposed line would cut across their entire land and hinder future construction, there was also discussion of an alternative route along a pathway adjacent to the CSI Church, which parties including the CSI Church secretary and a nearby owner did not object to. The 2nd respondent submitted a report favoring the route through the petitioners’ property as the most feasible and shortest, and the 1st respondent accepted this assessment, allowing the weatherproof line to be installed. The petitioners argued that not all legal heirs had been given opportunity to participate and that the chosen route would cause prejudice and inconvenience. The court cited Kanaran v. Additional District Magistrate, Kozhikode (2013 (3) KHC 445), emphasizing that a quasi-judicial authority must independently evaluate feasible routes rather than relying solely on a single report. The court allowed the writ petition, quashed Ext. P5, and directed the 1st respondent to reconsider the matter afresh with personal hearing and, if necessary, a site inspection, within two months, arranging for dismantling the existing line if an alternate route is feasible.

Provisions of Law Cited

Section 16(1) of the Indian Telegraph Act

Legal Doctrines & Maxims

Quasi-judicial authority must independently appraise feasibility of different routes, not blindly rely on a single report.
If a feasible alternative route exists that does not obstruct private property, it should be preferred even if longer or more expensive.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that all legal heirs of Israyel were not given an opportunity before the 1st respondent. They submitted that despite objection by the 5th petitioner that the line would cut across the property, the 1st respondent did not adequately consider the prejudice and feasibility of an alternative route. They highlighted that the CSI Church’s secretary and Sri Titus had not objected to a pathway along the church’s side, suggesting feasibility of that route. The petitioners argued that the 1st respondent relied on the 2nd respondent’s report without independent feasibility appraisal, and that the route across their property would hinder future construction.

Contentions of Respondents

The respondents argued that the line had already been drawn and a connection provided to the 3rd respondent’s house; Ext.P5’s feasibility had been examined, and any changes would cause delays. They pointed out that the present arrangement involved a direct and shortest feasible route, and that the petitioners’ objections should be weighed against the practicalities of providing electrical service to the third respondent.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Kanaran v. Additional District Magistrate, Kozhikode and others	2013 (3) KHC 445	Positive	The judgment relies on the Kanaran principle that a quasi-judicial authority must independently appraise feasible routes and prefer routes not cutting across private property, even if slightly longer or more expensive.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 2ND DAY OF JANUARY 2014/12TH POUSHA, 1935** ## **WP(C).No. 27679 of 2013 (H)** ## **----------------------------** ## **PETITIONER(S) :** ## **--------------------------** **1. MALACHI, S/O.ISRAYEL, AGED 47 YEARS, M.R.BHAVAN, OTTUMALA, KATTADI P.O., POOYAPPALLY, KATTADI JUNCTION KOLLAM, PIN - 691 537.** ## **2. ESTHERKUTTY,** **W/O.SAMKUTTY, AGED 48 YEARS ANCY BHAVAN, OTTUMALA KATTADI P.O., POOYAPPALLY, KOLLAM PIN-691537.** ## **3. SELVARAJAN,** **S/O.ISRAYEL, AGED 35 YEARS, MAVILA VEEDU, OTTUMALA KATTADI P.O., POOYAPPILLY, KOLLAM, PIN-691537.** ## **4. MARIYAM,** **W/O.LATE ISRAYEL, AGED 83YEARS, MAVILA VEEDU, OTTUMALA KATTADI P.O., POOYAPPILLY, KOLLAM, PIN-691537.** ## **5. SAMKUTTY** **H/O.ESTHERKUTTY, AGED 50 YEARS, ANEY BHAVAN, MAVILLA VEEDU OTTUMALA, KATTADI P.O., POOYAPPILLY KOLLAM, PIN-691537.** **BY ADVS.SRI.A.K.GOPALAN SRI.V.N.MOHAN RAJ SMT.LIMNA BHASKARAN** ## **RESPONDENT(S) :** ## **----------------------------** **1. ADDITIONAL DISTRICT MAGISTRATE KOLLAM COLLECTORATE, CIVIL STATION,** **KOLLAM DISTRICT, PIN-691537.** **...2/-** **WP(C).No. 27679 of 2013 (H) -2-** ## **2. ASSISTANT EXECUTIVE ENGINEER** - **KSEB, ELECTRICAL SUB DIVISION, VELIYAM KOLLAM DISTRICT, PIN-691537.** ## **3. JAYAVATHY** **DAS BHAVAN, OTTUMALA, KATTADI P.O. KOLLAM DISTRICT, PIN-691537.** **R2 BY ADV. SRI.SAJEEVKUMAR K. GOPAL, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** ## **WP(C).No. 27679 of 2013 (H)** **----------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS : -------------------------------------** **EXHIBIT P1 : TRUE COPY OF THE SAID DOCUMENT NO.906/1981.** **EXHIBIT P2 : TRUE COPY OF THE DOCUMENT NO.1353/1995 MARKED AS** **EXHIBIT P3 : TRUE COPY OF THE DEATH CERTIFICATE OF ISRAEL** - **EXHIBIT P4 : A SKETCH SHOWING PATHWAY TO THE 3RD RESPONDENT'S HOUSE.** **EXHIBIT P5 : ORDER NO.K.DIS.30938/2013/M4 DT.2-9-2013 OF THE R1.** **EXHIBIT P6 : TRUE COPY OF THE COMPLAINT DT. 3-12-2012 TO THE D.C.KOLLAM.** **EXHIBIT P7 : PHOTOGRAPHS IN ORIGINAL OF THE PETITIONER'S HOUSE WITH ELECTRIC POST.** ## **RESPONDENT(S)' EXHIBITS : NIL** **------------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 27679 of 2013 --------------------------------Dated this the 2[nd] day of January, 2014 ## JUDGMENT Petitioners are legal heirs of deceased Sri.Israyel, who died on 8.3.2013. The issue pertains to drawing of electric line through property belonging to the deceased, for providing electric connection to the 3[rd] respondent. Since the petitioners objected drawing of line in a manner cutting across the said property, the 2[nd] respondent had approached the 1[st] respondent invoking section 16(1) of the Indian Telegraph Act. The 1[st] respondent issued notice to the 5[th] petitioner and other property owners in the nearby locality, who will be affected by drawing of the line. The 5[th] petitioner objected drawing of the line as proposed, by submitting that the line will cut across the property in its entire width and it will not be possible to construct any building anywhere near to the alignment. The 5[th] petitioner had pointed out that there is no objection in drawing the line through the eastern boundary of the property in question. He had further pointed out that there is an existing pathway through WP(C). 27679 /2013 2 which a line has already been drawn to the CSI Church situated nearby, and that connection can be provided to the 3[rd] respondent by drawing line through the said pathway. It is mentioned in Ext.P5 order that the proposal for drawing of the line through pathway situated nearby to the CSI Church was not objected by the Secretary of the Church, as well as by the person whose property is situated in the vicinity, Sri. Titus. But after conducting hearing in the matter the 1[st] respondent found that the alternate route suggested will cause prejudice and inconvenience to other parties who are objecting drawing of line through their properties. Having found that the route suggested by the 2[nd] respondent through the property of the petitioners is the most feasible and shortest, the 2nd respondent was permitted to draw the line through the said route by establishing weather proof wire after planting support post in the property. It is aggrieved by Ext.P5 this writ petition is filed. 2. Contention of the petitioners is that, all the legal heirs of Sri. Israyel was not given opportunity before the 1[st] respondent. It is further contended that, despite specific WP(C). 27679 /2013 3 objection raised by the 5[th] petitioner that the line will cut across the property in its entire width, the 1[st] respondent has failed to consider the prejudice and inconvenience which will be caused. It is also pointed out that, despite the Secretary of the CSI Church and Sri. Titus had expressed no objection in drawing the line through the pathway situated through the side of the Church, the 1[st] respondent had failed to consider feasibility of such a route. 3. It is evident from the averments contained in the writ petition that the property in question is having extent of 24 cents and 12 cents, purchased by deceased Sri. Israyel by virtue of Exts.P1 and P2 documents. Now the property is in the joint ownership (co-ownership) of all the petitioners. If partition is effected, each of the petitioners may get only a small piece of land. The weather proof line now permitted is to be drawn across the property by planting two support posts. There is substance in the contention that it may hinder construction of buildings in the property, in future. Prima facie it is evident from Ext.P5 that the authorities of the Church as well as another person who may be affected had consented for drawing of line WP(C). 27679 /2013 4 through the pathway, which is allegedly existing for access to the 3rd respondent's house. But the 1[st] respondent has not considered feasibility of such a route. On the other hand the 1[st] respondent had simply accepted the report submitted by the 2[nd] respondent that the route proposed by him is the most feasible and shortest. ## 4. This court in the judgment in **Kanaran vs. Additional District Magistrate, Kozhikode and others (2013 (3) KHC** **445)** held that, the quasi-judicial authority had to exercise the power vested under Section 16(1) by appraising feasibility of different routes suggested, independently, without blindly relying on any report submitted by the authorities of the Kerala State Electricity Board. If the line can be drawn through a pathway without causing obstruction to the property of anybody, such route has to be preferred rather than drawing the line cutting across the property of any private persons, even if such route is slightly longer or slightly expensive. 5. In the case at hand, learned Standing Counsel appearing for respondents 1 and 2 had pointed out that the line has already WP(C). 27679 /2013 5 been drawn and connection was already provided to the 3[rd] respondent's house. Anyhow, since the petitioners were challenging sustainability of Ext.P5, this court is of the opinion that the matter need reconsideration at the hands of the 1[st] respondent. 6. Under the above mentioned circumstances the writ petition is allowed. Ext.P5 is hereby quashed. The 1[st] respondent is directed to dispose of the matter afresh after affording opportunity of personal hearing to all the petitioners as well as other parties affected . The 1[st] respondent shall conduct a site inspection, if found necessary for appraising feasibility of the alternate route suggested . The matter shall be disposed of at the earliest, at any rate within a period of two months from the date of receipt of a copy of this judgment. 7. If the 1[st] respondent finds that the alternate route suggested by the petitioners is feasible, the line now drawn through the property of the petitioners shall be dismantled WP(C). 27679 /2013 6 and new line shall be drawn through the said route, at the expenses of the beneficiary. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 27679 /2013 7