Mary Scaria v. Additional District Magistrate Collectorate, Civil Lines, Ayyanthole, Thrissur; Kerala State Electricity Board and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **FRIDAY, THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935** ## **WP(C).No. 21925 of 2013 (M)** ## **----------------------------** ## **PETITIONER :** - **--------------------** **MARY SCARIA, W/O.SCARIA, NADUPARAMBIL HOUSE, MANALITHARA P.O., THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680589.** ## **BY ADV. SRI.K.S.BHARATHAN** ## **RESPONDENT(S):** - **----------------------------** **1. THE ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, CIVIL LINES, AYYANTHOLE THRISSUR, PIN-680 003.** ## **2. THE ASSISTANT EXECUTIVE ENGINEER** - **ELECTRICAL SUB DIVISION KERALA STATE ELECTRICITY BOARD, WADAKKANCHERRY THRISSUR DISTRICT, PIN-680 582.** ## **3. THE ASSISTANT ENGINEER** - **ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD PUNNAMPARAMBU, THEKKUMKARA P.O., THRISSUR DISTRICT PIN-680 608.** ## **4. BEERANKUTTY N.** - **NALAKATH HOUSE, PAZHAYANNURPADAM, MANALITHARA P.O. THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680589.** ## **5. YACOB** **MANAYIDAYIL HOUSE, PAZHAYANNURPADAM, MANALITHARA P.O. THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680589.** ## **6. JOSE** - **S/O. MATHEW, PENGATTUPUTHENPURAYIL HOUSE PAZHAYANNURPADAM, MANALITHARA P.O., THALAPPILLY TALUK THRISSUR DISTRICT, PIN-680 589.** ## **7. SASI** **MALATH HOUSE, PAZHAYANNURPADAM, MANALITHARA P.O. THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680 589.** **R1 BY SR. GOVT. PLEADER SRI. K.C. VINCENT R2 & R3 BY ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSEB R4 BY ADVS. SRI.HARISANKAR V. MENON** **SRI.MAHESH V.MENON** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 21925 of 2013 (M) ----------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **-------------------------------------** - **EXHIBIT P1TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 01-09-2011.** **EXHIBIT P2TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 07-06-2013.** **EXHIBIT P3TRUE COPY OF THE PLAINT IN O.S.NO. 441/2013 DATED ON 17-06-2013.** **EXHIBIT P4- TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 05-08-2013 ALONG WITH THE ROUGH PLAN.** - **EXHIBIT P5TRUE COPY OF THE NOTICE ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT DATED 12-07-2013.** **EXHIBIT P6TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO.20397 OF 2013 DATED 16-08-2013.** - **EXHIBIT P7TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 21-08-2013.** **RESPONDENT(S)' EXHIBITS : NIL** **--------------------------------------------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **C.K. ABDUL REHIM, J. -----------------------------------W.P.(C). No. 21925 of 2013 --------------------------------------------------Dated this the 11[th] day of October, 2013** ## **JUDGMENT** Exts. P2 and P7 orders issued by the 1[st] respondent in exercise of powers vested under Section 61(1) of the Indian Telegraph Act, read with Section 164 of the Indian Electricity Act, 2003, is under challenge in this writ petition. The petitioner objected drawing of electric line for providing connection to the house of the 4[th] respondent, on the premise that it will pass through her property and will cause prejudice to beneficial enjoyment of the said property. Initially the matter was dealt with by the 1[st] respondent and Ext.P2 order was issued. In Ext.P2 the petitioner's husband was cited as a respondent. The 1[st] respondent conducted a site inspection on 16.05.2013. It is evident from Ext.P2 that those persons cited as respondents in the order as well as the beneficiary were present at the time of the site inspection. Three routes were suggested by the 2[nd] respondent. The first proposal is to draw 70 meters overhead WP(C).21925 /2013 2 line by inserting 3 posts and by drawing 20 meters service wire, through a private pathway, which according to the 2[nd] respondent is in joint ownership of the petitioner's husband and one Sri.Varghese, whose consent has already been obtained. The husband of the petitioner objected the proposal stating that the property through which the overhead line is to be drawn is owned by him, and that a stay wire proposed will cause much hindrance to fruitful enjoyment of his property. Second proposal suggested is to draw 100 meters overhead line crossing a paddy filed belonging to the 5[th] respondent. The 2[nd] respondent submitted that drawing of line through the paddy filed which remains water logged in rainy season will cause much difficulty to maintain the line. Further the 5[th] respondent also raised strong objection against such proposal. The 3[rd] proposal is to draw 120 meters overhead line through the property of 7[th] respondent. The proposal was objected by the 7[th] respondent. The 2[nd] respondent submitted that the route is full of rubber trees and drawing of line in zig-zag manner through the property will cause much expense. After considering all aspects the 1[st] respondent found that the WP(C).21925 /2013 3 first route is feasible. However in order to avert the situation of planting stay wire in the property shifting of a post marked as 'x', was ordered. Further it is stated that after shifting of the post overhead line can be drawn without any hindrance. 2. After passing of Ext.P2 order the petitioner herein filed a civil suit before the Munsiff's Court, Vadakkancherry, as O.S. No.441/2013. The beneficiary as well as the 2[nd] respondent were made partners. Injunction was sought for against drawing of line on the basis that the property belongs to her and she had not consented for drawing of the line. The 2[nd] respondent sought a review of Ext.P2 order, before the 1[st] respondent, under such circumstances. It was requested to implead the petitioner and to decide the matter afresh after affording an opportunity of personal hearing to her. On the basis of the request of the 2[nd] respondent the matter was reviewed and Ext.P7 order was issued after conducting fresh hearing with notice to the petitioner. The 1[st] respondent had permitted drawal of line approving the first route itself by shifting of the post as directed in Ext.P2. It is specifically found that no tree cutting is necessary in the property WP(C).21925 /2013 4 of the petitioner and only the branches of some trees along the boundary need be trimmed. It was also specifically observed that the drawing of line will not affect contentions in the civil suit. It was further clarified that drawing of line will not confer any right or interest on the beneficiary over the property of the petitioner. 3. Petitioner is challenging Ext.P7 order mainly on the ground that the 1[st] respondent had only confirmed his earlier order, without conducting any fresh site inspection with notice to the petitioner. But it is to be found that the petitioner's husband was a party in the proceedings which culminated in Ext.P2 and site inspection was conducted at his presence. Further the petitioner was given proper opportunity to object the proposal and she was afforded with personal hearing after review of the earlier order. On merits, main contention is that there is no pathway in existence as found in Exts.P2 and P7. According to the petitioner, the 4[th] respondent has no right over the property belonging to the petitioner and he has no right over the alleged pathway. Specific finding arrived by the 1[st] respondent is that the 1[st] route suggested is through a private pathway. Facts WP(C).21925 /2013 5 illustrated with the aid of sketch produced before the 1[st] respondent as well as the sketch produced along with Ext.P4 commission report revealed that from the PWD road there exists a pathway up to the property of the petitioner. According to the learned counsel for the petitioner, drawing of line as permitted by the 1[st] respondent is to be through the property of the petitioner after the point where the pathway touches the petitioner's property. It will necessitate cutting and removal of trees standing in the property as well as it will obstruct replanting of rubber proposed in the property. But it is to be noted that, categoric finding of the fact arrived by the 1[st] respondent on the basis of inspection conducted is that the line can be drawn through a pathway without requirement of cutting trees in the properties and some branches of the trees situated along the boundary alone need be trimmed. Learned counsel for the petitioner had canvassed the finding contained in Ext.P4 commission report to substantiate that there exists no pathway. But I am of the considered opinion that a report of the Advocate Commissioner submitted in a civil suit cannot be adopted as WP(C).21925 /2013 6 convincing material in order to reverse the finding arrived by the quasi judicial authority who had exercised the power vested under section 16 of the Telegraph Act, that too after conducting personal inspection. 4. Yet another contention raised by the petitioner is regarding feasibility of the other route suggested. It is contended that second route is through a paddy field and it will not cause any hindrance to enjoyment of the property of the 5[th] respondent. But the 2[nd] respondent had categorically submitted before the 1[st] respondent that drawing of line through the said route is not technically feasible because of the fact that paddy field will remain water logged considerably. Regarding the 3[rd] route the 1[st] respondent found that it is lengthy to the extent of 120 meters overhead line and it is remaining in a zig-zag manner and the property is covered by full of Rubber trees. 5. It is to be noticed that on the factual aspect the 1[st] respondent had arrived at a finding with respect to the comparability and feasibility of the routes suggested. This court cannot reverse such finding based on contentions relating to facts WP(C).21925 /2013 7 which are in dispute between the parties. Regarding technical feasibility for drawing line through the alternate route, it is to be noted that the 2[nd] respondent had expressed difficulties. I cannot find fault with the 1[st] respondent in accepting the view taken by the 2[nd] respondent with respect to technical feasibility. In this regard it is worth mentioning that this court had decided in **Elizabeth George and others vs. Deputy Chief Engineer, KSEB, Kototayam and others (2013 (3) KHC 686)** that it is not possible for the District Magistrate to consider techno/economic feasibility of any particular route. It can only be considered by the KSEB whether the route is technically feasible. 6. Under the above mentioned circumstances I do not find any ground existing to interfere with the impugned orders. However it is made clear that drawing of line will not create any right on the beneficiary, the 4[th] respondent, over the property belonging to the petitioner and it will not in any manner affect the rights and liabilities of the parties with respect to enjoyment of any of the properties. WP(C).21925 /2013 8 In the result the writ petition is dismissed subject to observations contained herein above. C.K.ABDUL REHIM, JUDGE pmn/ WP(C).21925 /2013 9