Saroj.C. v. The District Collector, Kudappanakunnu, Thiruvananthapuram; The Additional District Magistrate (General), Collectorate, Kudappanakunnu; Kerala State Electricity Board Ltd.; Assistant Executive Engineer, Line Construction Sub Division, Balaramapuram; Project Manager, Vizhinjam International Seaport

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **WP(C).No.1619 OF 2020(B)** ## **PETITIONER :** **SAROJ.C. AGED 52 YEARS W/O.LATE JOHN VICTOR, VICTOR VILLA, KALLUVETTAN KUZHI, VENGANOOR P.O., VIZHINJAM, THIRUVANANTHAPURAM-695 523. BY ADVS. SRI.AYYAPPAN SANKAR SMT.S.HRIDYA SRI.JAYAN JOHN** ## **RESPONDENTS :** - **1 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695 035.** - **2 THE ADDITIONAL DISTRICT MAGISTRATE, DEPUTY COLLECTOR (GENERAL), COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695 043.** - **3 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY ITS CHAIRMAN, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** - **4 ASSISTANT EXECUTIVE ENGINEER, LINE CONSTRUCTION SUB DIVISION, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.** - **5 PROJECT MANAGER, VIZHINJAM INTERNATIONAL SEAPORT, OFFICE OF THE PROJECT MANAGER, KATTACODE P.O., KATTAKADA, THIRUVANANTHAPURAM-695 572.** - **R3-4 BY ADV. SRI.K.M.SATHYANATHA MENON R3-4 BY ADV. SMT.KAVERY S THAMPI** **SRI SUDHEER GANESH KUMAR SC, SRI RON BASTIAN SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.1619 OF 2020(B)** **2** ## **JUDGMENT** The petitioner, a widow and the mother of a disabled son, is the owner of property having an extent of 14 cents in Re-Survey No.155/1-6 in Vizhinjam Village. According to the petitioner, the respondents with a view to upgrade the existing 66 KV line passing over her property to a 220 KV line, is intending to indiscriminately cut and remove 70 yielding trees situated in her property without even proposing to pay reasonable compensation for the same as contemplated by the provisions of the Indian Telegraph Act, 1885 and the Electricity Act, 2003. It is further contended that the line is being drawn in such a manner as to cause extensive damages to her property. Pursuant to orders passed in a Writ Petition filed by her, the dispute was referred to the 1[st] respondent by this Court. However, the 2[nd] respondent, in an arbitrary manner and without taking note of the facts and circumstances, permitted the 4[th] respondent to draw the line as per the route proposed by them on the ground that the said route is the most feasible one. It is in the aforesaid circumstances that she has approached this Court and filed this Writ Petition seeking the following reliefs: i) issue a writ of certiorari quashing Exhibit-P5 and all proceedings culminating therein and pursuant thereto; ii) Issue a writ of mandamus commanding respondents 3 and 4 to **WP(C).No.1619 OF 2020(B)** **3** draw the proposed 220 KV electric transmission lines, in such a manner causing least risk and loss to the petitioner and to draw the lines through the same property over which the existing 66 KV electric transmission lines are drawn, to the extent possible iii) Issue a writ of mandamus commanding respondents 1,3 and 4 to assess and pay adequate compensation to petitioner, for her property as well as the trees and also for the loss of income and shelter, before cutting of trees from petitioner's property and drawing of lines across her property” 2. A counter affidavit has been filed by respondent Nos.3 and 4, opposing the contentions. It is stated that the Board has launched the System Improvement Project Construction of 220 KV substation at Kattakada and 220 KV line from Kattakada to Balaramapuram to cater to the power deficient southern and eastern regions of the Thiruvananthapuram District. The aforesaid 220 KV line will extend upto Vizhinjam and is meant for the Vizhinjam International Sea Port Ltd., which is a dream project of the State and the Nation. The project has been sanctioned at an estimated cost of Rs.59.97 Crores. For the construction of 220 KV multicircuit line to the proposed 110 KV Sub station Balaramapuram, a route survey was conducted and the most technically and economically feasible route was approved by the Chief Engineer (Transmission). While fixing the route, thickly populated areas with buildings were avoided. The total length of the 220 KV line is 21 meters and the entire power lines will have to be drawn through 92 **WP(C).No.1619 OF 2020(B)** **4** towers. The foundation works for all the 92 locations and 90% of the stringing works have been completed. The petitioner’s property comes within tower locations 27 and 28 in the existing Balaramapuram – Vizhinjam 66 KV power line, which is now being enhanced to 220 KV. It is further stated that the trees that are to be cut and removed have been earmarked and also that no towers are proposed to be erected in the petitioner’s property. It is stated that the proposed 220 KV line is constructed with extra height in order to minimize the damages and therefore construction of buildings would be permitted by maintaining the statutory clearance. The land below the line can also be used for agricultural purposes for planting shrubs, plantains, tapioca and vegetables. 3. The petitioner has filed a reply affidavit wherein it is stated that the officers of the respondent Board are acting in an arbitrary and oppressive manner. It is reiterated that no compensation have been paid for the trees which are proposed to be cut and removed. It is also stated that though the respondent has filed a counter affidavit stating that the lines are drawn at an enhanced height, the fact remains that several trees have been ordered to be cut and removed. 4. I have bestowed my thoughtful considerations to the rival submissions made across the bar and have perused the records. **WP(C).No.1619 OF 2020(B)** **5** 5. 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 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 **WP(C).No.1619 OF 2020(B) 6** 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] )** . 6. 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 India v. Kushala Shetty[2]** ) 7. 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** 1[2017 (3) KLT 420] 2[2011 (12) SCC 69] **WP(C).No.1619 OF 2020(B)** **7** **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 are vitiated by mala fides this Court will not be justified in interfering with such orders. ## 8. 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 3 [2013 (3) KHC 686] - 4 [AIR 1972 Ker. 47] 5 [1997 (2) KLT 979] **WP(C).No.1619 OF 2020(B)** **8** 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. (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 **WP(C).No.1619 OF 2020(B)** **9** 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. 9. In the case on hand, the main grievance of the petitioner is that if the respondents are permitted to draw the line along the alignment fixed by the respondent Board, it would result in causing incalculable harm to her. I find that the respondents 3 to 5 are not proposing to erect any towers in the property of the petitioner herein. What is being carried out is an upgradation of the existing 66 KV line to a 220 KV line. The existing right of way of the 66 KV line is 18 metres which would be enhanced to 35 metres as a result of the upgradation. From the materials made available, it appears that no conductors are passing over the residence of the petitioner. Before passing the order, the 2[nd] respondent has heard the petitioner and have perused the reports submitted by the Board as well as the Revenue. He has also given directions to pay the compensation due to the petitioner as per the provisions of the Act. It is thus apparent that the 2[nd] respondent has considered all the relevant aspects before permitting the respondents 3 to 5 in drawing the line. The 2[nd] respondent has concluded that it would not be technically feasible to change the alignment of the line. **WP(C).No.1619 OF 2020(B)** **10** 10. A judicial review of the decision of the District Magistrate can be resorted to only in accordance with the well settled parameters that inform the exercise of such power. As held by this Court in **Indu Chandran (supra),** this Court will be justified in interfering with the discretion exercised by the District Magistrate only in cases of established illegality, irrationality, procedural impropriety or where the decision is found to be unreasonable in the wednesbury sense or vitiated by malafides, either factual or legal. It is further held that Court must defer to the opinion of experts in the field and if the decision of the District Magistrate is found to be based on such reports, this Court should not normally interfere with the said decision. In the instant case, I am unable to find any infirmities in the order which is a considered one passed after hearing all sides. There is no allegation of malafides nor can it be said that the order is perverse. I find no reason to interfere with Ext.P5 order on any of the grounds raised by the petitioner. This Writ Petition will stand dismissed. There will be no order as to costs. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** **NS** **WP(C).No.1619 OF 2020(B)** **11** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** - **EXHIBIT P1** **TRUE PHOTOCOPY OF THE DISABILITY CERTIFICATE OF PETITIONER'S ELDER SON ISSUED BY THE STANDING DISABILITY ASSESSMENT BOARD OF GENERAL HOSPITAL, THIRUVANANTHAPURAM DATED 15.10.2010.** **EXHIBIT P2** **TRUE PHOTOCOPY OF NOTICE NO.EB/BLPMVZM/353/TREES DATED 03.11.2015 SERVED ON THE PETITIONER ON 01.01.2016.** - **EXHIBIT P3 TRUE PHOTOCOPY OF THE SITE PLAN PRODUCED BY THE 4TH RESPONDENT AS EXHIBIT R3(a) IN WPC NO.1226/2016.** - **EXHIBIT P4 TRUE PHOTOCOPY OF JUDGMENT DATED 11.11.2019 OF THIS HONBOURABLE HIGH COURT OF KERALA IN W.P.(C)1226/2016..** **EXHIBIT P5** **TRUE PHOTOCOPY OF ORDER DATED 12.12.2019 ISSUED BY THE 2ND RESPONDENT AND SERVED TO THE PETITIONER BY POST ON 18.12.2019.** ## **RESPONDENT(S) EXHIBITS:** **EXHIBIT R3(a)** **TRUE COPY OF THE GAZETTE NOTIFICATION NO.PR1-269/WINDOW/1649(A)/09 DATED 22/12/2009.** - **EXHIBIT R3(b) TRUE COPY OF THE SITE PLAN WITH MARKINGS OF THE EXISTING 66KV LINE AND 220KV LINE INCLUDING ITS RIGHT OF WAY.** - **EXHIBIT R3(c) PHOTOGRAPH OF LOCATION NO.27. EXHIBIT R3(d) PHOTOGRAPH OF LOCATION NO.28. EXHIBIT R3(e) TRUE COPY OF THE REQUEST DATED 21/1/2020 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.**