Moideen v. Additional District Magistrate Malappuram; Kerala State Electricity Board; Kunhi; Alungal Ammu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935** **WP(C).No. 4630 of 2014 (C) ---------------------------** **PETITIONER(S): --------------------------** **MOIDEEN, S/O. AHAMMED, KARI HOUSE, MUNAMBAM, MATTATHUR P.O., MALAPPURAM DISTRICT.** **BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH** **RESPONDENT(S):** - **----------------------------** **1. THE ADDITIONAL DISTRICT MAGISTRATE, MALAPPURAM, PIN-676 505.** ## **2. THE ASSISTANT EXECUTIVE ENGINEER,** - **ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, KOTTAKKAL, MALAPPURAM DISTRICT, PIN-676 503.** ## **3. SMT.KUNHI,** - **W/O. RAMAN, ALUNGAL HOUSE, MUNAMBATH, MATTATHUR P.O., MALAPPURAM DISTRICT, PIN-676 528.** **4. SMT.ALUNGAL AMMU, ALUNGAL HOUSE, MUNAMBATH, MATTATHUR P.O., MALAPPURAM DISTRICT, PIN-676 528.** **R1 BY GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA R2 BY ADV. SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 4630 of 2014 (C)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT P1- TRUE COPY OF THE OBJECTIONS FILED IN O.A.NO. 18/2011 BY THE PETITIONER BEFORE THE LAND TRIBUNAL, TIRUR DATED 2-8-2012.** **EXHIBIT P2- TRUE COPY OF THE OBJECTIONS FILED IN O.A.NO. 19/2011 BY THE PETITIONER BEFORE THE LAND TRIBUNAL, TIRUR DATED 2-8-2012.** **EXHIBIT P3- TRUE COPY OF THE COMPLAINT DATED 27-6-2013 MADE BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** **EXHIBIT P4- TRUE COPY OF THE OBJECTION DATED 11-12-13 FILED BY THE PETITIONER TO EXIBIT P3.** **EXHIBIT P5- TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT, DATED 10-1-14 AS ORDER NO. E3-41109/2013.** ## **RESPONDENT(S)' ANNEXURE:** **-------------------------------------------** **ANNEX.R2(a): TRUE COPY OF THE REPORT SUBMITTED BY THE ASSISTANT EXECUTIVE ENGINEER TO ADVOCATE SAJEEVKUMAR K.GOPAL, STANDING COUNSEL FOR KSE BOARD.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **K.SURENDRA MOHAN, J. --------------------------------------------W.P.(C) No.4630 of 2014-C ---------------------------------------------Dated this the 4[th] day of March, 2014** ## **J U D G M E N T** The petitioner has filed this writ petition challenging Exhibit P5 order of the Additional District Magistrate, Malappuram passed under Section 16(1) of the Indian Telegraph Act, 1885. The matter relates to the grant of electric connections to the houses of respondents 3 and 4. According to the petitioner, respondents 3 and 4 are persons who have no rights in respect of the property which absolutely belongs to him. They are persons who have been claiming tenancy rights in respect of the property under the Kerala Land Reforms Act, 1963. The issue is pending before a Civil Court. The question of tenancy has been referred to the Land Tribunal. Therefore, respondents 3 and 4 are not entitled to claim electric connections to their houses. 2. The present proposal that has been accepted by ## -:2:- ## W.P.(C) No.4630 of 2014-C Exhibit P5 permits drawing of an electric line through the middle of the petitioner's property thereby completely diminishing the utility thereof. Though detailed objections, set out in Exhibit P4 had been submitted to the first respondent, the objections have not been considered in Exhibit P5. 3. According to Sri.Rakesh K, Advocate who appears for the petitioner, this Court has held in a number of decisions that the first respondent being a Quasi Judicial Authority is dutybound to refer to the objections raised by persons like the petitioner and to consider them properly, in the order passed by them. No such consideration of the objections raised in Exhibit P4 is discernible from Exhibit P5. The hardships that are likely to ensue to the petitioner and his property, though set out in Exhibit P4, has not been considered in Exhibit P5. It is also contended that the Assistant Engineer, Othukkungal has no jurisdiction in the matter of granting an electric connection to respondents 3 ## -:3:- ## W.P.(C) No.4630 of 2014-C and 4. The alternative route proposed by the petitioner has also not been considered in Exhibit P5, it is contended. It was stated that, there was an electric post in one Krishnan's property from which, the proposed connection could have been granted to respondents 3 and 4 without causing any difficultly to the petitioner. 4. Advocate Sajeev Kumar K. Gopal appears for the second respondent. A statement has been filed by the counsel. It is pointed out that the second respondent is the person who has initiated the proceedings before the first respondent under Section 16(1) of the Telegraph Act. Being the superior authority, he has the necessary power to do so. Placing reliance on Exhibit R2(a), it is contended by the counsel for the second respondent that there is no electric post in the property of Sri. Krishnan, as contended by the petitioner. It was for the said reason that no reference was made to the said contention in Exhibit P5. The other contentions have been referred to and considered by the ## -:4:- ## W.P.(C) No.4630 of 2014-C first respondent, it is contended. 5. Heard. The dispute of the petitioner is only that his objections have not been considered in Exhibit P5. As rightly pointed out by the counsel for the second respondent, the question of jurisdiction of the Assistant Engineer, Othukkungal, does not arise for consideration for the reason that, the authority who has initiated action under Section 16(1) of the Telegraph Act, is the second respondent who is clothed with the necessary powers to do so, even according to the petitioner. The second objection that has been put forward in Exhibit P4 is that the electric connection could be given to the houses of respondents 3 and 4 from an electric post that is situate in one Krishnan's property. Exhibit R2(a) shows that, the second respondent had personally visited the site and has found that there was no electric post as alleged in Krishnan's property. In view of the above factual assertion made by the second respondent, I do find that the non consideration of the said ## -:5:- ## W.P.(C) No.4630 of 2014-C objections in Exhibit P5 is of any consequence. 6. The counsel for the petitioner has placed reliance on the decision of the Division Bench in **Balakrishna Pillai v. Additional District Magistrate, Alappuzha and others** [2009(1) KHC 311] and the decision reported in **Kanaran v. Additional District Magistrate and Others** [2013(3) KHC 445]. The dictum in both these cases is to the effect that the principles of natural justice mandates the first respondent to consider the objections raised by persons who object to the drawing of the electric line, in a dispassionate manner. A site inspection by the first respondent personally or by an Officer authorised by him is also necessary to ascertain the factual situation, it has been held. There cannot be any dispute with regard to the above aspects. 7. A perusal of Exhibit P5 shows that on receipt of a petition from the second respondent, the Village Officer, Othukkungal, had been deputed by the first respondent to ## -:6:- ## W.P.(C) No.4630 of 2014-C conduct a site inspection. The report was that, Sri. Salim the brother of the petitioner was willing to give his consent. It is stated to have been further reported that respondents 3 and 4 and their ancestors have been living in the property for the past 60 years. Their claim for tenancy rights is pending consideration of the Land Tribunal. The Village Officer had also suggested the same route as the second respondent. Exhibit P5 further shows that a hearing had been conducted where the main argument of the counsel related to the title of the property and the tenancy of respondents 3 and 4. The petitioner's counsel had also expressed the willingness of his client to give some portion of the land to respondents 3 and 4 at a different place. Since the objections raised at the hearing related only to the question of tenancy, which the first respondent was not competent to adjudicate, Exhibit P5 order has been passed directing the connection to be given through the route proposed by the second respondent. It has been made clear ## -:7:- ## W.P.(C) No.4630 of 2014-C that Exhibit P5 order would not be evidence to prove the rights of respondents 3 and 4 over the property. I find that Exhibit P5 has considered all the relevant aspects of the case put forth by the petitioner. I do not find that the dictum in the decisions referred to above has been violated by the issue of Exhibit P5. If the petitioner ultimately succeeds in the civil litigation, he would certainly be entitled to have the electric connection removed. Therefore, I am not satisfied that any interference with Exhibit P5 is called for. For the above reasons, this writ petition fails and the same is accordingly dismissed. Sd/- **K.SURENDRA MOHAN, JUDGE** kkj