Mathai (S/o Varghese); Sudheer (S/o Ibrahim); Shiyas M.K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932** **WP(C).No. 35077 of 2010(H)** **----------------------------------------** ## **PETITIONER(S):** - **----------------------** **1. MATHAI, S/O. VARGHESE, AGED 63 YEARS, THANIMOLLATH IKKARAKUDIYIL HOUSE, ARAKKAPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **2. SUDHEER, S/O. IBRAHIM, AGED 34 YEARS, MOLEKUDI HOUSE, ARAKKAPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **3. SHIYAS M.K., S/O. KUNJUMUHAMMED, AGED 32 YEARS, MOLEKUDI HOUSE, ARAKKAPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.PAUL K.VARGHESE** ## **RESPONDENT(S):** ## **---------------------------** **1. THE STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, POWER (ELECTRICITY) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-690 001.** **2. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, ERNAKULAM, PIN-682 020.** **3. THE ADDITIONAL DISTRICT MAGISTRATE, CIVIL STATION, KAKKANADU, ERNAKULAM, PIN-682 020.** **4. POWER GRID CORPORATION OF INDIA LTD., GOVERNMENT OF INDIA ENTERPRISES, REPRESENTED BY THE GENERAL MANAGER, SR II 32 RACE COURSE ROAD, SAHAKARA BHAVAN, BANGALORE-560 001.** ## **WP(C).No. 35077 of 2010(H)** **5. THE CHIEF MANAGER, POWER GRID CORPORATION OF INDIA LTD., CONSTRUCTION AREA OFFICE, CHANDINI PLOT NO.190-B, MAVELIPURAM COLONY, KAKKANAD, KOCHI-682 020.** ## **6. THE TAHSILDAR,** **KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-682 020.** **R1 TO R3 & R6 BY GOVT. PLEADER MR.BASANT BALAJI. BY GOVT. PLEADER MR.P.M. MANOJ. R4 & R5 BY SRI.K.P. DANDAPANI, SENIOR ADVOCATE, ADV. SRI.MILLU DANDAPANI.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, ALONG WITH WP(C) NO.35605 OF 2010 AND WP(C) NO. 36293 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR, J.** ## **-----------------------------------------------------------W.P.(C).Nos.35077, 35605 & 36293 OF 2010 -----------------------------------------------------------Dated this the 10[th] day of December, 2010.** ## **JUDGMENT** The petitioners in all the above writ petitions petitioners are aggrieved by the proposal to draw 400 KV electric line by the Power Grid Corporation of India Limited, over their respective properties as part of the same project. Since common issues based on common facts involve for consideration in these three writ petitions, they were jointly heard and are being disposed of by this common judgment. 2. The Power Grid Corporation of India (for short 'Corporation' only) is required to establish transmission system and to undertake transmission of electricity through inter-state transmission system. Therefore, the Ministry of Power, Government of India as per Ext.P4(1) order No.G.O.1463(E) dated 24.12.2003 authorised the Corporation to exercise all the powers vested in the Telegraph Authority under Part III of the Indian Telegraph Act, 1885, in respect of the electrical lines and electrical plant established or maintained, or to be established or 2 **W.P.(C).Nos.35077, 35605 & 36293/10** maintained for the transmission of electricity or for the purpose of telephonic or telegraphic communication necessary for the proper co-ordination of the works subject to compliance by the commission to the requirements of the provisions of the Electricity Act, 2003 and the rules made thereunder, in exercise of powers conferred by Section 164 of the Electricity Act, 2003. The Nuclear Power Corporation of India Ltd., (NPCIL) is setting up a Nuclear Power Station at Kudankulam in Tamilnadu and it is destined to be developed two stages of 2000 Mega Watts, making the ultimate installed capacity of the power station as 4000 MW. The first unit of sage of 1 of the said power station has already commissioned. For evacuation of power from the said Kudankulam Power Project transmission system has been approved by the Standing Committee on Power System Planing for Southern Region and accordingly the evacuation networks are formulated and approved by the Government of India for drawal of Central allocated shares of power to 3 **W.P.(C).Nos.35077, 35605 & 36293/10** the beneficiary states. State of Kerala is also one of the beneficiary States and as per scheme of systems at appropriate locations, 400 KV tower lines would be stepped down to 200 KV lines for distribution to cater the needs of the public. The approved scheme consists of Kochi-Thrissur 400 KV(Quad) Double Circuit line system as well. The proposal in question forms part of the said system. Therefore, indisputably, the project in question is one having great public interest. The segment concerned in all the three writ petitions is the one between Kochi and Thrissur. 3. The density of population in the state of Kerala is so high that one could hardly find any uninhabited area. Therefore, naturally any proposal to lay lines, as has been proposed in this case, will pave way to obstructions and resistances. The pleadings and proceedings in this writ petition would reveal that the present project led to a number of litigations and in fact, as regards the petitioners it is not their initial round of litigation. Based on the 4 **W.P.(C).Nos.35077, 35605 & 36293/10** objections against the proposal of the Corporation to draw the electric lines through the proposed route raised by the petitioners and similarly aggrieved persons the commission preferred a complaint in terms of Section 16(1) of the Telegraph Act 1985 and Section 164 of the Electricity Act, 2003. In fact, some such objectors had approached this Court even prior to the passing of orders by the District Magistrate on the complaint by the Corporation. After considering the rival contentions this Court directed the authority under Section 16(1) of Telegraph Act to consider the objections/grievances of the concerned parties including the feasibility of the alternate route and to afford them an opportunity of being heard and then to pass orders. In compliance with the directions in Ext.P7 in W.P.(C) No.35077 of 2010 , Ext.P6 in W.P.C.No.35605 of 2010 and Ext.P7 in 36293 of 2010, the authority under Section 16(1) of Telegraph Act issued notices to all the parties concerned. After issuing such notices, admittedly, a site inspection was 5 **W.P.(C).Nos.35077, 35605 & 36293/10** conducted by the Additional District Magistrate, in the presence of all the parties concerned. It is also not in dispute that subsequent to such site inspection all of them were afforded with an opportunity of being heard and, impugned orders viz., Ext.P8 in all these writ petitions were passed only thereafter. The challenge in all these writ petitions is directed against Ext.P8 order, viz., Ext.P8 order dated 29.9.2010 in W.P.(C). No.35077 of 2010, Ext.P8 order dated 29.9.2010 in W.P.(C).No.35605 of 2010 and Ext.P8 order dated 6.11.2010 in W.P.(C).No.36293 of 2010, passed by the authority Additional District Magistrate, Ernakulam by invoking the power under Section 16(1) of the Telegraph Act. 4. With respect to the scope of interference with an order passed by the authority under Section 16(1) of Telegraph Act, 1885 the position has been settled long back, by this Court. Going by the decision of the Full Bench of this Court in **Bharat Plywood & Timber Products Private Ltd. v. Kerala State Electricity Board, (1970 KLT 872** 6 **W.P.(C).Nos.35077, 35605 & 36293/10** **(FB))** interference with such an order is possible by this Court not as a matter of course, but only on exceptional circumstances. A Division Bench of this Court after referring to the Full Bench Decision (Supra) held that judicial review is confined to the examination of the decision making process, the manner in which the decision was made under Section 16(1) of the Telegraph Act, 1885. In short, such an order can be interfered with only when the order is perverse. When the view taken by the authority passing the order under 16 (1) is a plausible or a possible view there is no scope for interference with it. I may, now examine the scope for interference with the impugned orders in these writ petitions. As already noticed hereinbefore, Ext.P8 in all these writ petitions are the impugned orders. There is no specific averment in these writ petitions that the said orders were passed in violation of the principle of audi alteram partem. Therefore, it has to be taken that the impugned orders have been passed with notice to the petitioners and after 7 **W.P.(C).Nos.35077, 35605 & 36293/10** affording them an opportunity of being heard. In fact the impugned orders would reveal that the said orders were passed only after affording an opportunity to all concerned. In short, there is no scope for interference with the impugned orders on that ground. 5. The contention of the learned counsel herein for the petitioners is that there is no proper application of mind. According to him application of mind can be reflected only through reasons and so long as the impugned orders carried no reasons it has to be taken that the said orders were passed with a closed mind. 6. I have heard the learned counsel appearing for the petitioners, the learned senior counsel appearing for the 3[rd] respondent and also the learned Government Pleader. 7. As noticed hereinbefore, the project in question is one established with the intention to transmit electric energy from the power station at Kudankulam in Tamilnadu to the beneficiary states, including the State of Kerala, as 8 **W.P.(C).Nos.35077, 35605 & 36293/10** their centrally allocated shares of power. In short, the state as a whole is the beneficiary as far as this project is concerned. Therefore, the grievances or objections raised by the petitioners can only be viewed only as their private interest. When private interest is in conflict with public interest the latter would definitely prevail over the former. The said position so settled in a number of decisions. However, that cannot be a reason to brush aside all the contentions of the petitioners at the threshold. The property rights of a person cannot be taken away without due process of law. In this case the procedures to establish and maintain electrical lines and the manner in which resistance or obstructions against are to be averted have been specified under the Indian Telegraph Act 1988. In terms of the specific provisions thereunder and taking note of the objections raised by the Corporation preferred a complaint in terms of Section 16(1) before the competent authority thereunder. The said authority under Section 16(1) adhering to the 9 **W.P.(C).Nos.35077, 35605 & 36293/10** relevant provisions of law and taking note of the specific directions of this Court in the writ petitions referred above issued notice to all the parties and passed orders on the complaints after affording them opportunity. In fact, prior to the passing of the impugned orders a site inspection was also conducted in the presence of the all the parties including the petitioners. The contention of the petitioners is that alternative feasible route is available. According to them, the Additional District Magistrate who passed the impugned orders had considered only the feasibility of the proposed route and on such consideration the orders were passed solely based on the submissions and reports of the Corporation. In otherwords, the contention is that despite the specific directions by this Court the contentions and grievances of the petitioners were not properly adverted to by the Additional District Magistrate while exercising the power under Section 16(1) of the Telegraph Act. However, the said contentions were strongly refuted by the learned 10 **W.P.(C).Nos.35077, 35605 & 36293/10** senior counsel appearing for the Corporation as well as the learned Government Pleader. It is contended that a perusal of the impugned orders would reveal that all the aspects of the issue have been properly looked into by the Additional District Magistrate before passing the impugned orders. The feasibility, techno-feasibility, etc. were properly looked into. The learned senior counsel has also brought to the notice of this Court the consistent view of this Court that a report of an expert body on a technical issue cannot be substituted either by this Court or by the authority who is exercising the powers under 16(1) of the Telegraph Act. On the other hand the learned counsel appearing for the petitioner submitted that when the contentions raised by the aggrieved parties are not properly looked into by the authority while passing the orders under Section 16(1) that order calls for interference on that short ground. Therefore, the question is whether the findings of the authority who passed the impugned orders in these writ petitions under Section 16(1) 11 **W.P.(C).Nos.35077, 35605 & 36293/10** of the Telegraph Act are perverse inviting interference. 8. Before adverting to same it is relevant to refer decisions of this Court reported in **Ajith K.N. v. State of Kerala and Others, (2010 (2) KHC 895).** In fact the petitioners thereunder filed the concerned writ petition on being aggrieved by the order passed by the Additional District Magistrate based on the direction of this Court in the judgment which is referred to as Ext.P6 in W.P.(C).No.35077 of 2010. That would again show that the question regarding the finding of the Additional district Magistrate as to the feasibility of the proposed route and scope of interference based on the objections against the very same project under the very same segment were taken into account by this Court in the said judgment. After referring to the Full Bench decision of this Court reported in **Bharat Plywood & Timber Products Private Ltd. v. Kerala State Electricity Board, (1970 KLT 872 (FB))** and also the Division Bench decision of this Court in **Sukumaran P.G. v.** 12 **W.P.(C).Nos.35077, 35605 & 36293/10** ## **Power Grid Corporation Ltd. and Others, (2010 (1)** **KHC 918 (DB))** the scope of interference with an order of the Additional District Magistrate passed under Section 16(1) of the Telegaph Act, 1885 in respect of the very same project under the very same segment was considered therein by this Court. Paragraph 4 of the decision in Ajith's case (Supra) would reveal that the petitioners therein were parties to Ext.P6 judgment herein. Virtually, the orders passed pursuant to the direction in Ext.P6 judgment are impugned in Ajith's case. “To what extent interference is possible or warranted in a writ petition under Article 226 of the Constitution of India, challenging sustainability of the order passed by the Statutory Authority/Additional District Magistrate invoking the relevant provisions under the Indian Telegraph Act, with regard to drawing of electric lines through the property of the third parties' was the question considered and answered in the said decision. Obviously, after referring to the Full Bench decision in 1970 KLT 872 13 **W.P.(C).Nos.35077, 35605 & 36293/10** and the Division Bench decision in Sukumaran's case (Supra) it was held that interference with an order under Section 16 (1) of the Indian Telegraph Act is possible only when the views thereunder is palpably perverse or unreasonable. Yet, another instance calling interference is when it is tainted with malafides. After such consideration of the issue involved in the said writ petition the contentions were held as untenable and the writ petition was accordingly dismissed. In the light of the decision reported in Ajith's case reported in 2010(2) KHC 895 the petitioners cannot rely on Ext.P6. That apart, the said decision which pertains to grievances raised by persons belonging to the same segment of the same project would weaken their contentions. 9. The small distinction in this case is that the petitioners in these writ petitions are raising grievance against the proposal to lay lines over another sector belonging to the same segment and same project involved 14 **W.P.(C).Nos.35077, 35605 & 36293/10** in Ajith's case supra. The specific stand of the respondent Corporation is that the works in respect of Kochi-Thrissur segment are in advanced stage of completion. Further it is stated that the counter affidavit filed in WP(C) No.35077 of 2010 it is stated thus:- “Out of 222 tower foundations, only 4 Nos. of foundations left out, i.e., Tower 13/0, 13/1, 14/0 and 15/0. The tower erection and stringing works of line conductors and earth wire are also being carried out on was footing basis with a target to commission the line by March, 2011 so as to benefit the State of Kerala to receive its allocated share of power from the Central Pool. Our erection agency has mobilized about 24 tower erection gangs and they are working round the clock in the interest of completing the construction activities well before 31[st] March, 2011.” 10. The further contentions in the counter affidavit explain the progress of the project which is being established not only for the benefit of the State of Kerala 15 **W.P.(C).Nos.35077, 35605 & 36293/10** but, in fact for the benefit of the Nation. The specific contentions as extracted above are not at all refuted by the petitioners. In short, they would reveal that the project which is having great public interest is on the verge of near completion as far as the Kochi-Thrissur segment is concerned. The report of the Corporation referred to in Ext.P8 orders in these writ petitions is to the effect that a charge in alignment of the project is not at all feasible. Such a report was made after an elaborate techno-economical comparative study of the proposed route and the alternative route suggested by the petitioners. I am of the considered view that unless and until the petitioners are able to show that it is perverse or incorrect this Court cannot interfere with a report of an expert body and substitute its opinion. Therefore, the action on the part of the Additional District Magistrate in adverting to the same also cannot be said to be at fault. 11. Though the petitioners contend that the 16 **W.P.(C).Nos.35077, 35605 & 36293/10** proceedings in Ext.P8 orders are tainted with mala fides no materials have been produced to substantiate the same. In the writ petitions though it is contended that the original alignment was changed at the instance of a political leader and former Minister Mr.Kuuvila to save his larger extent of property the said person is not arrayed as a party to this writ petition. That apart, the petitioners have not alleged any mala fides against the Additional District Magistrate who passed the impugned orders and the said authority was not impleaded in her personal capacity. Moreover, the allegations are too vague as can be evident from the pleadings in these writ petitions. In such circumstances, based on such vague plea of mala fides this Court will not be justified in interfering with such orders. 12. It is true that whenever a project like the present one, is being attempted to be established it is bound to face some resistance or obstructions from certain owners or occupiers of properties over which lines are proposed to be 17 **W.P.(C).Nos.35077, 35605 & 36293/10** drawn. However, in a project like the present one which carries public interest and importance somebody may have to suffer some inconvenience and hardships in the user of the property to serve the common good. In such case, invariably, such persons would be given full compensation. In view of the foregoing reasons, I am of the view that even if the injurious aspects highlighted by the petitioners are correct, the private interest of the petitioners have to give way to the public interest involved in these cases. That apart, when a project of national importance and interest is nearing completion reasons highlighted by the petitioners cannot be a reason to interfere with the same. In short, I find no merit in these writ petitions and accordingly, these writ petitions are dismissed. ## **C.T.RAVIKUMAR, JUDGE** mns