P.T.GEORGE and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** ## **FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932** ## **WP(C).No. 17116 of 2010(L)** ## **------------------------** ## **PETITIONER :** - **------------------** **1. P.T.GEORGE, S/O. P.U.THOMAS, PERIAKOTTIL, JOURNALIST NAGAR, THRIKKAKARA P.O., KOCHI-682 021.** **2. T.A.SEBASTIAN, S/O. T.D. ANTHAPPAN, THAIPARAMBIL, THAMPURATTIPARAMBU ROAD, MAMANGALAM, KOCHI-682025.** **3. M.X. JOSLINE, S/O. M.J. XAVIER, MUTTUNKAL, CHERIAKADAVU, KANNAMALY, KOCHI-682008.** **4. GEORGE VARGHESE M., S/O. J. VARKEY MANATHARA, BEENA, ANJUMANA ROAD, EDAPPALLY, KOCHI-682024.** - **BY ADVS. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN** ## **RESPONDENT(S):** - **-----------------------** **1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM.** **2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, TRIVANDRUM.** **3. CHIEF ENGINEER (TRANSMISSION-SOUTH) TRIVANDRUM.** **4. DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, KALAMASSERY, ERNAKULAM DISTRICT.** **...2/-** **WP(C).No. 17116 of 2010(L) -2-** **5. EXECUTIVE ENGINEER, TRANSMISSION DIVISION, BRAHMAPURAM, ERNAKULAM DISTRICT.** **6. ASSISTANT EXECUTIVE ENGINEER,** - **T.C.SUB DIVISION, K.S.E.B., BRAHMAPURAM, ERNAKULAM DISTRICT.** **7. ADDITIONAL DISTRICT MAGISTRATE (A.D.M.) COLLECTORATE, ERNAKULAM, KAKKANAD, ERNAKULAM DISTRICT.** **R1 & R7 BY GOVT. PLEADER SRI. M.A. ASIF R2 TO R6 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR, J.** --------------------------------------W.P(C)No.17116 of 2010 ---------------------------------------Dated 8[th] October, 2010 ## **JUDGMENT** The question to be decided in this writ petition is whether the drawing of electric line as proposed as per Ext.R6(b) is liable to be interfered with on account of the fact that it is in deviation from the original proposal as per Ext.P6. The petitioners who are joint owners of property covered by Ext.P1 filed this writ petition on being aggrieved by the proposal on the part of the respondents to draw the 220 KV Multi Circuit Transmission Line from Pallikkara to Brahmapuram for evacuation of power from the 400 KV substation being constructed by M/s.Power Grid Corporation of India Ltd., in terms of Ext.R6(b) to the extent it proposes to deviate at points `I' and `J'. According to the petitioners, in the approved alignments as per Ext.P6 the points in question were shown as `I' and `J' and as per Ext.R6(b), after its approval, it has now been decided to draw the line through the points `I1' and `J1' as is obvious from Ext.P8. In short, the question is whether the proposal on the part of the respondents to draw the line in deviation from Ext.P6 approved plan in terms of Ext.R6(b) calls for any interference. Admittedly, the drawal of the above line from Pallikkara to Brahmapuram was for the purpose of getting the alloting Central share to the State. In essence, the WP(C).No.17116/2010 2 objection raised by the petitioners is against the drawal of 220KV Multi Circuit Transmission Line from Pallikkara to Brahmapuram through their properties. The total length of the proposed route is 6.5 Kms. and going by the proposed plan in Ext.R6(b) necessarily it has to pass through the property belonging to the petitioners covered by Ext.P1. According to the petitioners, it is a dry land. However, relying on the revenue records the respondents contended that the route in between the angle points `I1' and `J1' passes through paddy fields belonging to the petitioners. In fact, Ext.P1 also supports that contention. Admittedly, the present proposal to draw the line is for a public purpose. Earlier, the petitioners raised their objections against the drawal of line through their property as proposed as per Ext.R6(b). Taking into account the objections raised by them, the matter was referred under Section 16(1) of the Indian Telegraph Act read with Section 164 of the Indian Electricity Act, 2008. After issuing notice to all concerned parties including the petitioners a decision was taken on the said objections, by the 7[th] respondent. Ext.P14 is the order. It is challenging Ext.P14 order that this writ petition has been filed. 2. A counter affidavit has been filed in this writ petition by respondents 2 to 6. According to them, a preliminary survey of construction of the line was conducted in October, 2009. The route WP(C).No.17116/2010 3 was selected in such a way ensuring that it passes through paddy fields to the maximum extent possible so as to avoid public protest. In other words, according to them, maximum care has been taken for the purpose of avoiding drawing of electric line over dwelling houses and busy junctions. In paragraph 6 of the counter affidavit it has been stated that with a view to draw the line through paddy fields and to avoid its entry over dry lands changes in location at certain angle points became necessary and therefore such changes are done at certain angle points such as C, F, G, H, I and J. According to respondents 2 to 6, such changes were necessitated only to avoid drawing of lines through dry lands. It is the contention of the respondents that based on the objection raised by the petitioners the issue was referred to the 7[th] respondent in accordance with the provisions under the Indian Telegraph Act and the 7[th] respondent after affording opportunities of being heard to all concerned and after conducting a site inspection passed Ext.P14 order. According to them, the revised route plan of Pallikkara - Brahmapuram has been made available before the 7[th] respondent during the site inspection. 3. The petitioners contend that Ext.P14 is a cryptic order and none of the contentions raised by them have been adverted to therein. It is their further contention that being the authority clothed 4 WP(C).No.17116/2010 with power under Section 16(1) of the Indian Telegraph Act, the 7[th] respondent was bound to consider all the objections raised by the parties before taking a decision. According to them, Ext.P14 is unsustainable because it reflects absolute non-application of mind. It is in the said circumstances that they contend that Ext.P14 is liable to be set aside and also pray for a direction to the respondents to draw the line as originally proposed. 4. There cannot be any doubt with respect to the position that in respect of drawing of electric lines the reports of technical experts could not be ignored while examining the feasibility of routes suggested by the parties. In this case, as already noticed, the suggestion on the part of the petitioners is that the line should be drawn as originally proposed. However, according to the respondents, after Ext.P6 they have revised the plan with a view to draw the line as far as possible only over paddy fields and it was in the said circumstances that resurvey was conducted and pursuant to which a revised plan was drawn with approval in January, 2010. The learned counsel for the petitioners in the said context contended that, in fact, there was absolutely no objection from any quarters as against the original plan, i.e., Ext.P6. But, in the counter affidavit itself it has been specifically stated that at the time of preparing the original plan the WP(C).No.17116/2010 5 paddy fields were submerged in water and that is why they were constrained to conduct a resurvey and prepare a revised plan. 5. Admittedly, the petitioners were afforded opportunity by the District Magistrate and a site inspection was also conducted. Admittedly, drawing of 220 KV line is for a public purpose as mentioned above. For the purpose of enabling evacuation of power from the 400 KV substation M/s. Power Grid Corporation of India Ltd. has to construct a 220 KV power bay and it is from there that it has to be evacuated. Admittedly, it is only for the purpose of getting the alloted State's share from the Centre that from the 400 KV line the 220 KV line is being drawn from Pallickara to Brahmapuram. Essentially, it is for public interest. Relying on the decision of this Court in _**Ajith K.N. and Others**_ v. _**State of Kerala and Others**_ (2010 (2) KHC 895) the learned standing counsel for the respondents submitted that in a matter wherein public interest involves the private interest should give way to public interest. In ground `Q' the petitioners have contended that the change in the alignment is proposed only for saving the lands of some interested persons. Barring the said vague averments there is no specific averment with respect to malafides. It is settled position that malafides have to be specifically pleaded and proved. Since the allegation is too vague this Court WP(C).No.17116/2010 6 cannot look into those aspects. Considering the facts thus obtained in this case in the light of the decision in _**Ajith K.N. and Others**_ v. _**State of Kerala and Others**_ (supra) compels me to come to the conclusion that the private interest of the petitioners has to give way to the larger public interest. However, the question is whether while passing Ext.P14 order all the contentions raised by the petitioners were taken into consideration by the 7[th] respondent and on account of the failure on the part of the 7[th] respondent in not adverting to such contentions whether any prejudice is caused to the petitioners. According to the petitioners, a deviation as proposed as per Ext.R6(b) would render their land purposeless and useless. In terms of the present proposal, the line will be drawn through the centre of their property and if line is drawn in tune with the present proposed alignment, it will divide their property into two and make it unworthy and useless. In fact, the learned counsel for the petitioners drawn my attention to the fact that even respondents did not have a case that such a deviation from Ext.P6 approved plan was proposed not based on any objection raised by any aggrieved party. However, the learned counsel for the respondents submitted that the circumstances that constrained the authorities to take such a deviation have been sufficiently explained in the counter affidavit and additional affidavit. WP(C).No.17116/2010 7 According to them, the competent engineers after conducting a survey have taken such a decision. That apart, prior to the passing of Ext.P14 the 7[th] respondent has conducted site inspection. I do not think it proper for this Court in the said circumstances to interfere with the proposal especially when for its accomplishment constructions have already been started. However, evidently, there is absence of any objection from any quarters with respect to the original plan. The tenor of the contentions raised in the counter affidavit would suggest that the respondents were compelled to take a decision to draw line through the land belonging to the petitioners on account of the fact that village records describe the property of the petitioners as paddy field. However, according to the petitioners, long ago it was converted to dry land and presently it is dry land and the present proposal would render their land unworthy and useless. As already noticed, the stand of the respondents is that the deviation was sought to be effected only to avoid drawal of line over dry lands as far as possible. In the said circumstances, it requires consideration. Even according to the respondents, the construction on the point `J1' is yet to be started. But, according to the petitioners, they have already started the construction of the base of the tower at the angle `I1'. Therefore, a consideration, before starting construction at angle `J1' as to whether WP(C).No.17116/2010 8 it is feasible to take a deviation to minimise the hardship and inconvenience to the petitioners would not hamper the propspects of the present project. In fact, going through Ext.P14 order, evidently, the 7[th] respondent had not adverted to any such contentions or looked into prospects for such a deviation while passing the order. In the said circumstances, it is essential to look into those aspects before starting construction of tower for the purpose of drawing line from Pallikkara to Brahmapuram at the point `J1'. Having found that those aspects were not taken into consideration by the 7[th] respondent while passing Ext.P14 order, I am of the view that Ext.P14 is liable to be interfered to that extent. Therefore, the 7[th] respondent is directed to afford an opportunity of being heard to the petitioners and 6[th] respondent for the aforesaid purpose. In view of the urgency involved in this matter and also the fact that the present project is one having public interest, the 7[th] respondent shall fix the date for the aforesaid purpose between 5[th] and 15[th] of November, 2010 and shall intimate the date fixed for such hearing to the petitioners and the 6[th] respondent at least three days in advance. Any further construction at the point `J1' for the purpose of drawing lines in accordance with Ext.R6(b) shall be taken only after such a decision by the 7[th] respondent. It is made clear that this decision would enable the 7[th] respondent only to take a decision with WP(C).No.17116/2010 9 respect to the drawing of line in between the points `I' and `J' i.e., to decide whether it should be through `I' and `J' or through `I1' and `J1'. The writ petition is disposed of accordingly. C.T.RAVIKUMAR Judge TKS