Prabhakaran K.V. and Others v. Kerala State Electricity Board Ltd. & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **WP(C).No.35900 OF 2019(J)** ## **PETITIONERS:** - **1 PRABHAKARAN.K.V S/O.KUNHAMBU.K.V, KATTUKULANGARA, ANANDASHRAMAM.P.O, KASARAGOD DISTRICT.** - **2 DINESHAN.K.V S/O.KUNHAMBU.K.V, KATTUKULANGARA, ANANDASHRAMAM.P.O, KASARAGOD DISTRICT.** - **3 SHYAMKUMAR.K.V. S/O.KUNHAMBU.K.V KATTUKULANGARA, ANANDASHRAMAM.P.O, KASARAGOD DISTRICT.** - **4 AJAY PRASEETH.K.V S/O.KUNHAMBU.K.V KATTUKULANGARA, ANANDASHRAMAM.P.O, KASARAGOD DISTRICT.** - **BY ADV. SRI.JOSE J.MATHAIKAL** ## **RESPONDENTS:** - **1 THE KERALA STATE ELECTRICITY BOARD LTD. VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, PIN-695004** - **2 THE ASSISTNAT EXECUTIVE ENGINEER LINE MAINTENANCE SUB DIVISION, KERALA STATE ELECTRICITY BOARD LTD, MYLATTI, KASARAGOD DISTRICT, PIN-671318** - **3 THE ADDITIONAL DISTRICT MAGISTRATE AND DEPUTY COLLECTOR(GENERAL) KASARAGOD PIN-671121** - **R1-2 BY ADV. SRI.K.M.SATHYANATHA MENON R1-2 BY ADV. SMT.KAVERY S THAMPI** ## **SRI SATHYANATHA MENON SC** ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.35900-2019 2 ## **JUDGMENT** The petitioners herein are brothers. They are in absolute ownership, title and possession over property having an extent of 8 Acres situated in Re-survey No.87/1 of Ambalathara village, Kasaragod. According to the petitioners, they had plans to build separate residential homes in the said property. They contend that the respondents 1 and 2 are proposing to draw a 110 KV line through the middle of their property for which they have commenced survey works. According to the petitioners, if the line is drawn as proposed by the KSEB, it would bisect the properties and result in them sustaining serious loss. They would also be prevented from putting up future constructions in the property. They therefore, filed a written objection, a copy of which is produced as Ext.P2 pointing out that there are other feasible routes for drawing the lines which would have caused less inconvenience to the petitioners. The petitioners relies on the rough sketch showing the present alignment and also the alignment proposed by the petitioners to bring home their point that the route suggested by them is the most viable one. 2. In view of the objection raised by the petitioners, the W.P.(C)No.35900-2019 3 respondents 1 and 2 referred the matter to the 3[rd] respondent under Section 16(1) of the Indian Telegraph Act, 1885. 3. The 3[rd] respondent conducted a site inspection and perused the reports submitted by the revenue authorities. He also considered the objection raised by the petitioners and the feasibility report submitted by the respondents 1 and 2. After examining the rival contentions, by Ext.P3 order, the 3[rd] respondent granted permission to the respondents 1 and 2 to erect multi circuit tower and draw 110 KV line over the property of the petitioners in public interest. 4. The petitioners impugn Ext.P3 order contending that the 3[rd] respondent have ignored the ground realities and have passed an order unmindful of the grave inconvenience and loss that would be caused to the petitioners. It is their contention that the respondents 1 and 2, while exercising the powers conferred on them under the Electricity Act, 2003 and the Telegraph Act, 1885, is duty bound to cause as minimum damages as possible. All that the petitioners had requested was to adjust the line towards the northern boundary of their property so that the loss that was likely to sustain to the petitioners would have been considerably reduced. W.P.(C)No.35900-2019 4 5. A counter affidavit has been filed by the respondents 1 and 2. It is contended that due to acute shortage of power in the State of Kerala, the KSEB with the assistance of the Central Government had constructed a 50MW solar park at Ambalathara by fixing solar panels in about 250 Acres of land. The construction of the solar park has been completed. The KSEB also propose to construct a new 220/110KV sub station at Ambalathara solar park. The said substation was intended to be the new source of 110 KV power for the entire Kasaragod District. This was necessitated because the existing 220 KV sub station at Mylatti had become overloaded. The new sub station at Ambalathara was also necessary for alternative power evacuation for 50 MW solar park at Ambalathara. The 110 KV multi circuit line from 220/110 KV solar substation Ambalathara to the existing 110 KV Kanhangad Cheruvathur line was proposed for the aforesaid objective. The 110 single circuit line from Mylatti to Mundayad sub station in Kasaragod District has to be upgraded to 220/110 KV Multi Circuit Multi Voltage (MCMV) line under transgrid 2.0 project funded by the Kerala Infrastructure Investment Fund Board (KIIFB). It is further contended that gazette notification was issued for conducting survey on 22.11.2017 and the notification was published in the prominent dailies on 7.1.2018. The preliminary survey was carried W.P.(C)No.35900-2019 5 out in terms of the statutory Rules and Regulations and the final route was approved by the Chief Engineer Transmission (North) on 12.12.2018. The approved line length is 3.2 kms and 14 Nos. of 110KV towers are proposed. Out of the 14 towers, 13 towers have already been erected and stringing over a distance of 1.4 kms have been completed. It is further contended that using advanced techniques as well as google map, survey was conducted and the Board has excluded thickly populated areas, agricultural crops, residential houses etc. and had finalized the route, which was approved by the Chief Engineer. It is contended that the proposed line causes minimum inconvenience to the petitioners and is the most technically feasible and viable route. Referring to Ext.R2(a) google map, it is contended that the statutory clearance between 110 KV line and 220 KV line as per Regulation 69 of the Central Electricity Authority (Measures relating to the Safety and Electric Supply) Regulations, 2010 (Regulations, 2010 for short) has to be maintained at 4.58 metres. To maintain statutory clearance, the only way to draw the proposed 110 KV line is by crossing the existing 220 KV line on the either side of the existing 220 KV tower situated in the compound of the solar park. The adjacent property being that of the petitioners, the Board has no other option but to draw the line through the property of the W.P.(C)No.35900-2019 6 petitioners and to construct an M30 type tower in a vacant portion of the property. According to the respondent Nos. 1 and 2, the Tower No. 3 which is proposed to be placed is on the northern boundary of the property of the petitioners. They state that there are no agricultural crops in the area. The Village officer, Ambalathara and also the Tahsildar, Hosdurg had reported before the 3[rd] respondent that the line proposed by the respondents Nos. 1 and 2 is the ideal route. According to the respondents, due to the opposition raised by the petitioners there has been delay in charging the line. It is further contended that it is technically impossible to shift the crossing point of the 110KV line with the 220 KV line to any other location because it would cause line sagging and thereby cause safety related issues. It would also violate the regulations required to be complied under Regulations, 2010. 6. The petitioners have filed a reply affidavit along with Ext.P4 sketch and according to them, the drawing of the line in the proposed route would divide the property of the petitioners into two parts at a width of 20 metres which is the clearance width required for 110 KV line. According to the petitioners, if the line is drawn further to the north as in the sketch, it would be more straighter and would be beneficial for the Board as well. They would further contend that if line is drawn through W.P.(C)No.35900-2019 7 the ‘APC’ route as shown in Ext.P4 sketch, it would not affect any residential building of any person. 7. An additional counter affidavit is filed by respondent Nos. 1 and 2 and it is contended that the line proposed by the petitioners as per Ext.P4 sketch is unscientific and technically non feasible. According to the respondents 1 and 2, the line route was surveyed on numerous occasions and during the survey different options were considered and the KSEB tried their level best to avoid houses and thickly vegetated area. According to the respondents 1 and 2, for location No.2 shown in the sketch there is no other option other than drawing the lines on either sides of the existing 220 KV ‘P+6’ Tower. It is further pointed out that as per the route approved, the angle at location No.3 is 21[o] 10' and the proposed tower is ‘M30’ Tower. Taking this into consideration, tower has already been purchased and excavation of tower pits have been completed. Shifting the location to a different place may vary the angle of tower and there is also a likelihood that the procured tower cannot be used at location No.3. Shifting the position of location No.3 will also affect the angle at Location No.4, where the tower is already erected. 8. I have bestowed my thoughtful considerations to the rival W.P.(C)No.35900-2019 8 submissions made across the bar and have perused the records. 9. S.164 of the Electricity Act, 2003, enumerates the circumstances under which an authority under the Act can exercise the powers of a Telegraph Authority under the Indian Telegraph Act, 1885. The said provision enables the appropriate Government to confer upon any public officer, licensee etc., any of the powers that a telegraph authority possesses under the Indian Telegraph Act, 1885 with regard to placing of telegraph lines etc. It is on the basis of the power conferred on the authority by the Government, pursuant to S.164 of the Electricity Act, that the empowered authority exercises the powers in respect of laying of electric lines in terms of S.10 of the Indian Telegraph Act. Under the said provision, the empowered authority has to exercise the power for the purposes mentioned in the said Section, and the provision makes it clear that the authority at whose instance the power is exercised does not acquire any right other than that of a user of the property under, over, along, across, in, or upon which the electric line or posts is placed. The provision also mandates that the empowered authority shall do as little damage as possible, when it exercises the power in respect of any property other than property under the control of management of a local authority, and shall pay full compensation to all persons interested for any W.P.(C)No.35900-2019 9 damage sustained by them by reason of exercise of those powers. It is apparent from a reading of S.10 of the Indian Telegraph Act, therefore, that the power to be exercised thereunder is to be in the interests of the general public, and when so exercised, the restrictions that are imposed on the property owners cannot be said to be unreasonable. (see **Indu Chandran and Ors. v. KSEB, Tvm and Others[1] )** . 10. Before considering the precedents cited by both sides, it has to be borne in mind that it is by now settled that matters relating to technical feasibility is within the exclusive domain of KSEB authorities, unless of course, such decision making process is shown to be mala fide or totally irrational, capricious, arbitrary and other grounds on which there can be a jurisdictional visitation of different jurisdiction. The courts are not at all equipped to decide about the viability and feasibility of a particular project and also the question as to whether the particular alignment would sub serve the larger public interest. Courts are to be conscious that scope of judicial review in such cases is very limited. Courts are to bear in mind that detailed project reports and surveys are conducted by experts before arriving at the alignment. (see **Union of** 1[2017 (3) KLT 420] W.P.(C)No.35900-2019 10 ## **India v. Kushala Shetty[2]** ) 11. In **Elizabeth George and Others** v. **Deputy Chief Engineer, KSEB, Kottayam and Ors[3]** , a learned Single Judge of this Court relying on the earlier Full Bench decision of this Court in **Bharat Plywood and Timber Products Private Ltd.** v. **Kerala State Electricity Board Trivandrum and Others[4]** , had occasion to detail the procedure to be followed by the District Magistrate who receives a reference under Section 16 of the Telegraph Act. It was held that the District Magistrate has to exercise his discretion judicially after hearing the parties and after taking such evidence as is required with regard to the objections raised. A speaking order should be passed which should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same. 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 2[2011 (12) SCC 69] - 3 [2013 (3) KHC 686] - 4 [AIR 1972 Ker. 47] W.P.(C)No.35900-2019 11 are vitiated by mala fides this Court will not be justified in interfering with such orders. 12. In **Valsamma Thomas v. Additional District Magistrate[5]** , 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. 5 [1997 (2) KLT 979] ## W.P.(C)No.35900-2019 12 (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. (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. This Court will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters. 13. In the light of the above illuminating precedents, if Ext.P3 order is considered, it can be noticed that all relevant aspects were considered by the 3[rd] respondent while permitting the respondents 1 and 2 in putting up the tower and in drawing the line. The District Magistrate heard the parties and had also conducted a site inspection along with the revenue officers and the officers of the respondents 1 and 2 in the W.P.(C)No.35900-2019 13 presence of the petitioners. The version of both sides were considered by the District magistrate. He had also occasion to see the towers erected inside the solar park. He found that the land owned by the petitioners is vacant and no valuable improvements were seen on the site. The 3[rd] respondent has concluded that the route approved by the Chief Engineer, Transmission (North), Kozhikode cannot be changed as it would be technically difficult to deviate the line angle beyond permissible limits. The 3[rd] respondent while passing the order directed that the electrical line shall be installed approximately 30 feet from the ground and the line will be protected with a double insulated system on the towers. The petitioners were offered compensation amount with 75% of fair land value for the area where the tower is erected and 15% for the area where line is drawn. 14. Having considered the entire facts, I have no doubt in my mind that Ext.P3 order does not suffer from any infirmities. It is a speaking order after hearing both sides. The 3[rd] respondent has given formidable reasons for rejecting the objections. 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 findings of the Experts and in that view of the matter, this Court will not be justified in interfering with W.P.(C)No.35900-2019 14 the same. This Writ Petition will stand dismissed. There will be no order as to costs. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps W.P.(C)No.35900-2019 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ROUGH SKETCH EXHIBIT P2 TRUE COPY OF WRITTEN OBJECTION DATED 23.07.2019** **EXHIBIT P3 TRUE COPY OF ORDER NO.D5/5625/2019 D DIS DATED 17.12.2019** **EXHIBIT P4** **THE TRUE COPY OF THE ROUGH SKETCH** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2A** **GOOGLE MAP WITH RESPECT TO THE AREA WITH THE 220KV AND 110KV LINE TOWER LOCATION ETC.**