Sathyabhama C.K. v. District Collector, Civil Station, Echamukku, Kunnumpuram, Kakkanad, Ernakulam; The Assistant Executive Engineer, Electrical Sub Division, Kerala State Electricity Board, Kizhakambalam, Ernakulam; Eldho Mathew; The Assistant Executive Engineer, Electrical Sub Division, Kerala State Electricity Board, Pattimattom; Addl. District Magistrate, Civil Station, Echamukku, Kunnumpuram, Kakkanad, Ernakulam

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` # `PRESENT` ``` THE HONOURABLE MR. JUSTICE T.R.RAVI ``` ``` MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 ``` ## `WP(C) NO. 27266 OF 2023` ## `PETITIONER:` ``` SATHYABHAMA C.K., AGED 87 YEARS KRISHNAVILASAM HOUSE, CHOORAKODE, PATTIMATTOM P.O., PATTIMATTAM, ERNAKULAM, PIN – 683562. ``` ``` BY ADVS. STEPHY K REGI JAIN VARGHESE ANJANA P. JEO GEORGE NIDHIN REJI KURIAKOSE ``` ## `RESPONDENTS:` - `1 THE DISTRICT COLLECTOR, CIVIL STATION, ECHAMUKU, KUNNUMPURAM, KAKKANAD, ERNAKULAM, PIN – 682030.` - `2 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, KIZHAKAMBALAM, ERNAKULAM, PIN – 683562.` - `3 ELDHO MATHEW, AGE NOT KNOWN TO THE PETITIONER, PUTHENPURACKAL HOUSE, KAITHAKADU, PATTIMATTOM P.O., PATTIMATTAM , ERNAKULAM, PIN – 683562.` - `4 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, PATTIMATTOM, ERNAKULAM, PIN – 683562.` - `*ADDL.R5 ADDITIONAL DISTRICT MAGISTRATE, CIVIL STATION, ECHAMUKU, KUNNUMPURAM, KAKKANAD, ERNAKULAM- 682030.` ``` *(IS IMPLEADED AS ADDL.R5 AS PER ORDER DATED 16.10.2023 IN I.A.NO.1 OF 2023). ``` ``` BY ADVS. NIRMAL S TITTO THOMAS ``` ``` WP(C) NO. 27266 OF 2023 ``` ``` 2 ``` ``` BASIL KURIAKOSE R.REVIKUMAR NAVEEN THOMAS SRI. MATHEW JOHN ``` ``` SRI.B.PREMOD, SC SMT. K. G. SAROJINI. GP. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 27266 OF 2023 ``` ``` 3 ``` ## **T.R. RAVI, J.** ## **--------------------------------------** W.P.(C) No.27266 of 2023 ---------------------------------------------------Dated this the 16[th ] day of October, 2023 ## **JUDGMENT** The writ petition has been filed challenging the order passed by the 1[st] respondent in the matter of drawing an underground electric line to the property of the 3[rd] respondent through a common pathway. The properties originally belonged to the husband of the petitioner. After the death of the husband, the properties devolved on the petitioner and her children. The legal heirs entered into a partition whereby different plots were identified and allotted to the sharers. A way was drawn through the property for the purpose of reaching the properties allotted to each of the sharers. The petitioner was allotted schedule No.A in the partition deed. The 3[rd] respondent is a transferee of the sharer, who was allotted schedule No.E in the partition deed. The 3[rd] respondent intended to start an industrial unit and for that purpose, he wanted to draw an electric line. The line was ``` 4 ``` ``` WP(C) NO. 27266 OF 2023 ``` decided to be drawn by underground cabling through the pathway that had been set apart for the use of all the sharers. The petitioner objected to the drawing of the line. The counsel for the petitioner and the 3[rd] respondent were heard by the additional 5[th] respondent and Ext.R3(f) order was issued. The said order has been challenged in this writ petition. The primary contention raised is that the pathway belongs exclusively to the petitioner and the other sharers had only a user right over the pathway. It is hence submitted that without her permission a line cannot be drawn by underground cabling through the said pathway. Another contention taken is that she was never informed of the order that was passed and came to know about it only after the work started. 2. A reading of Ext.R3(f) shows that the contention that the pathway belongs to the petitioner was addressed before the additional 5[th] respondent and the additional 5[th] respondent has found that the way belongs to all the sharers. Even otherwise such a contention cannot be countenanced at the instance of one ``` WP(C) NO. 27266 OF 2023 ``` ``` 5 ``` of the sharers to whom a share in the property devolved on the death of the original owner. Once the death takes place all the legal representatives become sharers in the property and unless in the partition it is specifically stated that the ownership of the pathway has been set apart to the share of a single sharer no such right can be claimed by any of the sharers. The petitioner has only an equal right along with the other sharers for use of the way. Another contention that was taken before the additional 5[th] respondent was that if an underground cable is drawn the pathway will be considerably destroyed. The impugned order has recorded the undertaking of the 3[rd] respondent that the way will be put back to its original state after the drawing of the cable. As such that objection also stands answered. The writ petition does not raise any allegation of malafides against the additional 5[th] respondent. 3. The counsel for the 3[rd] respondent points out that it is settled law that an order which has been issued under Section 16 of the Telegraph Act, 1885 can be successfully challenged ``` 6 ``` ``` WP(C) NO. 27266 OF 2023 ``` only if there are allegations of malafides and this Court will not interfere unless there are such grounds available. Reference is made to the decisions of this Court in **Indu Chandran v. Kerala State Electricity Board Ltd.** [2017 (3) KLT 420], **Aleyamma v. Additional District Magistrate, Ernakulam** [2020 KHC 3922] and a Division Bench judgment in **Valsamma Thomas v. Additional District Magistrate** [1997 KHC 489]. I do not find any reason to take a different view. The objections which were raised before the additional 5[th] respondent have been answered. So long as there are no allegations of malafides the order cannot be successfully challenged before this Court. No grounds are made out. The writ petition fails and is dismissed. The dismissal of the writ petition is without prejudice to any other remedy that the petitioner may have under any other law in force. **Sd/-** **T.R.RAVI** **JUDGE** mpm ``` WP(C) NO. 27266 OF 2023 ``` ``` 7 ``` ## `APPENDIX OF WP(C) 27266/2023` ## `PETITIONER’S EXHIBITS` ``` EXHIBIT P1TRUE COPY COMPLAINT DTD 26.07.2023 SUBMITTED BEFORE THE 4TH RESPONDENT. EXHIBIT P2TRUE COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 06.07.2023. EXHIBIT P3TRUE COPY OF ORDER PASSED 1ST RESPONDENT DATED 10.08.2023. EXHIBIT P4TRUE COPY TAX RECEIPT DTD 14.07.2023 IS ISSUED BY THE VILLAGE OFFICER PATTIMATTOM. EXHIBIT P5TRUE COPY OF POSTAL COVER. EXHIBIT P6TRUE COPY OF LOCATION CERTIFICATE NO. 564/2023 DTD 07.09.2023 IS ISSUED BY THE VILLAGE OFFICER PATTIMATTOM. EXHIBIT P7TRUE COPY OF SKETCH OF SCHEDULED PROPERTY. ``` ## `RESPONDENTS’ EXHIBITS` ``` EXHIBIT- R3(A)TRUE COPY OF PARTITION DEED NUMBERED 5816/1999 OF SRO PUTHECRUISE DATED 30/12/1999. EXHIBIT- R3(B)THE TRUE COPY OF THE PERMIT FROM THE POLLUTION CONTROL BOARD DATED 06.11.2022. EXHIBIT- R3(C)THE TRUE COPY OF THE ACKNOWLEDGMENT CERTIFICATE DATED 26.06.2023 TO 25.06.2026. EXHIBIT- R3(D)THE TRUE COPY OF THE COMPLAINT DATED 30.06.2023, BEFORE THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM. EXHIBIT- R3(E)THE TRUE COPY OF THE OBJECTION DATED 26.07.2023 BEFORE THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM. EXHIBIT- R3(F)THE TRUE COPY OF THE PROCEEDINGS AND ORDER OF THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM DATED 10.08.2023. EXHIBIT- R3(G)THE TRUE COPY OF THE ORIGINAL SUIT NO. 224/2023 BEFORE THE HONOURABLE MUNSIFF COURT, PERUMBAVOOR DATED 21/7/2023. ``` ``` WP(C) NO. 27266 OF 2023 ``` ``` 8 ``` ``` EXHIBIT R3 (H)TRUE COPY OF SALE DEED NUMBERED 4873/2022 OF SRO PUTHECRUISE DATED 8/8/2022. EXHIBIT R3 (I)TRUE COPY OF SALE DEED NO.3581/2020 OF SRO PUTHECRUISE DATED 8/10/2020. EXHIBIT R3 (J)THE TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE PATTIMATTOM VILLAGE OFFICE DATED 11.09.2023. EXHIBIT R3(K)TRUE COPY OF THE LOCATION SKETCH FROM THE VILLAGE OFFICE DATED 11.09.2023. ```