Sowmya S. Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** ## **WP(C).No. 31023 of 2018** ## **PETITIONER:** **SOWMYA S. NAIR AGED 35 YEARS W/O N.V. SREEKUMAR, NADUVATHETHU PUTHUVELIL, ARUVAPPULAM PO, PIN 689 691, KONNI, PATHANAMTHITTA DISTRICT.** **BY ADVS. SMT.SADHANA KUMARI ESWARI KUM.VIJEENDRA CHANDRAN** ## **RESPONDENTS:** |**NTS**<br>**:**|| |---|---| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,**| ||**TRIVANDRUM 695 001**| |**2**|**KERALA STATE ELECTRICITY BOARD LTD**| ||**REPRESENTED BY THE EXECUTIVE ENGINEER,**| ||**TRANSMISSION DIVISION,**| ||**VAIDYUTHI BHAVAN,**| ||**PATHANAMTHITTA - 689 101.**| |**3**|**ASSISTANT EXECUTIVE ENGINEER**| ||**K.S.E.B.LTD.,**| ||**T.C.SUB DIVISION, THIRUVALLA,**| ||**PATHANAMTHITTA - 689 101.**| |**4**|**DISTRICT COLLECTOR**| ||**PATHANAMTHITTA COLLECTORATE,**| ||**PATHANAMTHITTA - 689 101.**| |**5**|**KALESH**| ||**ASST.ENGINEER, KSEB,**| ||**TRANSMISSION DIVISION,**| ||**PATHANAMTHITTA - 689 101.**| |***Addl**|**EXECUTIVE ENGINEER, KSEB**| |---|---| |**R6**|**TRANSMISSION DIVISION,**| ||**VAIDYUTHI BHAVAN,**| ||**PATHANAMTHITTA - 689 101**| ||***(ADDL R6 IS IMPLEADED AS PER ORDER DATED 25.01.2019 IN**| ||**I.A.NO.1/2019 IN WP(C)NO.31023/2018.)**| **BY ADVS. SRI.K.M.SATHYANATHA MENON-SC SMT.KAVERY S THAMPI** ## **OTHER PRESENT:** ## **SMT.AMMINIKUTTY-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31023 of 2018** **2** ## **J U D G M E N T** The petitioner impugns the installation of Tower No.29 by the Kerala State Electricity Board ('KSEB' for short) in her property, as part of the 66 KV Adoor - Enath power line intended to carry power to the new Sub Station at Enath. She makes several allegations, including that her property was not originally notified for such purpose; that the KSEB has altered the original alignment of the line so as to include her property with a deliberate intention of helping some one else; that no permission of hers was taken by the KSEB before erecting the Tower and that no compensation has been paid to her, including for the trees that have been cut and removed for such purpose. 2. In answer to these allegations, Sri.Sathyanatha Menon, the learned standing counsel for the Board, says that his client has placed on record very detailed pleadings, which would clearly show that the petitioner's property was included in the original alignment and that there was no modification of such alignment any time **WP(C).No. 31023 of 2018** **3** thereafter. He further says that, going by the judgments of the Hon'ble Supreme Court in **Power Grid Corporation of** **India Limited v. Century Textiles and Industries Limted and others [2017 (5) SCC 143]** followed by this Court consistently in several judgments subsequently, permission of the owner of a land for the purpose of setting up such a project is not necessary and that there is no requirement on the KSEB to refer the matter to the District Magistrate under the provisions of the Indian Telegraph Act either. He relies on the judgments of this Court in **Ajith K.N and others v. State of Kerala and others [2010 (2) KHC 895], Indu Chandran v. Kerala State Electricity Board Ltd [2017 (3) KLT 420], Johny E.C v. Additional District Magistrate, Ernakulam and others [2015 (5) KHC 40], Elizabeth George and others v. Deputy Chief Engineer, KSEB, Kottayam and others [2013 (3) KHC 686],** in substantiation of this contention. He further submits that the Board has now filed an additional counter affidavit on record, wherein they have produced Ext.R3(h) **WP(C).No. 31023 of 2018** **4** document to clearly indicate that the petitioner's property had been included in the original proposal and he shows me that the Tower shown as “Location No.29” carries the GPS co-ordinates of the petitioner's property. 3. After saying as afore, the learned standing counsel says that no trees were cut for the purpose of installation of the tower and therefore, that there was no question of any compensation or even notice being issued to the petitioner during the said work. He, however, says that if any further trees are to be cut and removed for the purpose of creating the mandatory safety corridor, then the petitioner will be adequately and suitably compensated as per law. 4. Sri.Sathyanatha Menon, then adds that the petitioner cannot have any case on facts either because, she was fully aware of the work of the installation of the Tower going on in her property since her parents were staying very close and that she had chosen not to challenge it, until it was complete and the power line having been drawn over **WP(C).No. 31023 of 2018** **5** it. He says that this is a case where, the principles of fait accompli applies in all its force, since the entire work of the towers before and after this particular tower is now complete. 5. Smt.Sadhana Kumari, the learned counsel appearing for the petitioner, in refutation of the afore submissions, says that it is incorrect to say that her client was aware of the construction going on in her property, since she is not staying there. She says that her clients' parents, though staying close-by, were both suffering from debilitating diseases during this period, finally leading to her father's death subsequently and therefore, that the attribution of knowledge to them by the KSEB as afore asserted is unfair and uncharitable to them. She, however, concedes that the work of Tower No.29 is now complete in her property and that the work on towers Nos.28 and 30, namely, those immediately before and after this tower, is also over. However, the learned counsel then accuses that towers 28 and 30 were erected in haste by the KSEB only to **WP(C).No. 31023 of 2018** **6** frustrate her clients' case and to invoke the principles of fait accompli, particularly because, allegedly, the towers before and after these towers are still only under construction. 6. After predicating as above, Smt.Sadhana Kumari submits that the real grievance of her client, who is willing to suffer for public purposes, is that by installing Tower No.29 at the place where it is presently done, her entire property would be deracinated, since the said tower is now virtually in the entrance of her property from the Panchayth road. She refers to Ext.P7 sketch produced along with the writ petition to say that the KSEB could have easily installed this tower in a corner of her property, away from the Panchayath road; in which event, she could have used the rest of the property profitably, including for construction of a residential house. She says that the present location of this tower is so inconvenient to her, that the whole property has now been practically rendered useless, particularly when the 11 metre safety corridor will **WP(C).No. 31023 of 2018** **7** be created on both sides of the tower. She, therefore, says that if the KSEB is willing to reconsider the location of this particular tower, by shifting it from the present position to anther portion of her own property to a point farthest from the Panchayth road, most of the misgivings and grievances of her client would stand allayed. She submits that if the KSEB is willing to consider at least this, her client is even willing to give up all her other contentions, on law and facts. 7. Sri.Sathyanatha Menon, in answer to this submission, says that in normal circumstances, the shifting of a tower which has already been installed may not be possible, on account of the large expenses involved and he asserts that in this particular case it is all the more difficult, because this is an “Angle Tower”. According to him, since the petitioner did not object to the installation of the tower at any time until it was completed, it may not be possible for the Competent Authorities now think about a change of its position; but he offers that, if it is technically and **WP(C).No. 31023 of 2018** **8** feasibly possible to do so, the KSEB will not stand in the way of considering the petitioner's afore request; but adds that a decision to this effect can be taken by the competent Authorities only subject to technical clearance and scientific deliberation. 8. When I hear the learned counsel as afore, it becomes indubitable that the real cause of concern for the petitioner is that the tower, according to her, has been installed in a place in her property that would cause virtual perdition to it. I notice that the petitioner does not mind having a tower in her property, provided it is shifted to a corner farthest from the Panchayth Road; in which event, according to her, the angle of the line would also be straighter than as is presently available. 9. I am, therefore, of the view that notwithstanding the objections of Sri.Sathyanatha Menon, the petitioner deserves to be given one opportunity to approach the competent Authorities seeking shifting of a Tower within her property, so as to cause the minimum damage to it, **WP(C).No. 31023 of 2018** **9** particularly taking note of “the right of way corridor” which is to be created in future, so that the grievance that her property has been completely rendered without use can be taken care of at least to a substantial extent. 10. That said, I do not propose to consider any of the petitioner's other contentions in this writ petition affirmatively for the singular reason that the work of the towers before and after the tower objected to herein, is now conceded to be complete and, therefore, it would not be now possible to shift the objected tower in any manner, so as to cause a change in alignment of all the other towers. It is also for this reason that I think that a limited latitude should be offered to the petitioner to seek shifting of the objected tower from one part of her property to the other without causing any prejudice to any other person. 11. I also record that I do not intend to go into the question of malafides alleged by the petitioner for the reason that she has not impleaded any of the persons, who she alleges, are benefited by the alleged change of **WP(C).No. 31023 of 2018** **10** alignment and therefore, it would not be possible for this Court to consider such allegations in the absence of proper pleadings and parties on the array. 12. In the afore perspective and taking note of the submissions made before me by the learned counsel, I leave liberty to the petitioner to approach the Executive Engineer, Transmission Division, Vaidyuthi Bhavan, Pathanamthitta, who is stated to be the Competent Officer of the KSEB, with a representation to shift Tower No.29 from the present position in her property to another position, if possible to a corner farthest away from the Panchayath Road, so that her property can be saved from further prejudice when the 11 metre right-of-way corridor is created in future. 13. I permit the petitioner to make such a representation before the afore said Authority within a period of one week from the date of receipt of a copy of this judgment; in which event, the said Authority will afford her an opportunity of being heard by issuing a notice in the address shown in this writ petition by registered post and **WP(C).No. 31023 of 2018** **11** thereafter take a decision thereon, within a further period of two weeks. 14. I make it clear that I expect the said Authority to consider the representation without being confined by technicalities or officialese and to do everything that is possible, within law, so as to allay the apprehensions of the petitioner. 15. Needles to say, until such a decision is taken and communicated to the petitioner by the afore mentioned Authority in terms of this judgment, further action to energize the line will be deferred. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** rp ## **JUDGE** **WP(C).No. 31023 of 2018** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DT.26/05/18. EXHIBIT P1 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P1.** **EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED FROM THE EZHAMKULAM VILLAGE OFFICE DATED 26/05/18.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DT.19/06/18 SENT TO THE EXECUTIVE ENGINEER. EXHIBIT P3 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P3. EXHIBIT P4 THE REPRESENTATION DT.19/06/2018 SENT TO THE CHIEF ENGINEER. EXHIBIT P4 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P4. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SENT TO THE KERALA STATE ELECTRICITY MINISTER DT.31/08/18. EXHIBIT P5 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P5. EXHIBIT P6 TRUE COPY OF THE REMINDER SENT TO EXECUTIVE ENGINEER DT.31/08/18. EXHIBIT P6 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P6. EXHIBIT P7 TRUE COPY OF THE REMINDER SENT TO THE CHIEF ENGINEER DT.31/08/18. EXHIBIT P7 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P7. EXHIBIT P8 TRUE COPY OF THE LETTER TO THE PUBLIC INFORMATION OFFICER UNDER RTI ACT DT.31/08/18. EXHIBIT P8 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P8. EXHIBIT P9 TRUE COPY OF THE LETTER BEARING NO.DB/37/AEE TCSOTVCA/25/31-08-18. EXHIBIT P9 A TRUE COPY OF THE TRANSLATION OF EXHIBIT P9. EXHIBIT P10 THE ROUGH SKETCH OF THE LAND. EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 12/09/18 TO** **WP(C).No. 31023 of 2018** **13** **THE RESPONDENT NO.4.** **EXHIBIT P11 A TRUE COPY OF TRANSLATION OF THE EXHIBIT P11.** - **EXHIBIT P12 TRUE COPY OF THE PHOTOGRAPHS TAKEN ON MAY 2018.** **EXHIBIT P13 TRUE COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER'S FATHER.** - **EXHIBIT P14 TRUE COPY OF THE DEATH CERTIFICATE OF THE PETITIONER'S FATHER.** - **EXHIBIT P15 TRUE COPY OF THE POSTAL CERTIFICATE FROM PATTOM H.O DELIVERED ON DATED 22.06.2018.** - **EXHIBIT P16 TRUE COPY OF THE POSTAL RECEIPT CERTIFICATE ISSUED BY THE PATHANAMTHITTA P.O. DELIVERED ON 21.06.2018.** - **EXHIBIT P17 TRUE COPY OF THE GOOGLE MAP SHOWING THE LATITUDE AND LONGITUDE OF THE PETITIONER'S PROPERTY.** ## **RESPONDENT'S/S EXHIBITS:** - **ANNEXURE R2(A) TRUE COPY OF THE GOOGLE MAP SHOWING THE TOWER NO.28,29 AND 30.** - **ANNEXURE R2(B) TRUE COPY OF THE ROUGH SKETCH, SHOWING TOWER NO.28,29 AND 30 AND THE ANGLE TOWER, NO.29 INSTALLED IN THE PETITIONER'S PROPERTY.** - **ANNEXURE R2(C) PHOTOGRAPH SHOWING THE TOWER INSTALLED IN THE PETITIONERS PROPERTY.** - **ANNEXURE R2(D) PHOTOGRAPH SHOWING THE TOWER INSTALLED IN THE PETITIONERS PROPERTY.** - **EXHIBIT R3(A) TRUE COPY OF THE REPLY NO.D.B.12/1819/T.C.S.D.T/143 DATED 14.09.2018 ISSUED BY THE PUBLIC INFORMATION OFFICER TO EXT-P9 UNDER THE RIGHT TO INFORMATION ACT, 2015.** **EXHIBIT R3(B) TRUE COPY OF THE JUDGMENT DATED 27.06.2018 IN W.P.(C)NO.17799/2018 OF THIS HON'BLE COURT. EXHIBIT R3(C) TRUE COPY OF THE GAZETTE NOTIFICATION PUBLISHED ON 16.02.2016 (RELEVANT PORTION).** **EXHIBIT R3(D) TRUE COPY OF THE PAPER PUBLICATION PUBLISHED IN DESHABHIMANI DAILY DATED 08.05.2017.** **WP(C).No. 31023 of 2018** **14** **EXHIBIT R3(E)** **TRUE COPY OF THE COMMUNICATION NO.CE(TS)/EE2/AEE6/ENATHU/16-17/1269(A) DATED 31.08.2016 ISSUED BY THE DEPUTY CHIEF ENGINEER WITH FULL POWERS OF THE CHIEF ENGINEER TO THE EXECUTIVE ENGINEER, TRANSMISSION DIVISION, PATHANAMTHITTA.** **EXHIBIT R3(F) TRUE COPY OF THE REPLY NO.DB/37/AEE TCSO TVLA/25 DATED 31.08.2018 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, TC SUB DIVISION, THIRUVALLA TO THE REPRESENTATION SUBMITTED BY THE PETITIONER.** **EXHIBIT R3(G)** **TRUE COPY OF THE REPLY NO.TD/PTA/AE2/DB 89/1819/384 DATED 13.08.2018 GIVEN BY THE EXECUTIVE ENGINEER TO THE PETITIONER.** **EXHIBIT R3(H)** - **TRUE COPY OF THE APPROVAL NO.CE(TS)/EE2/AEE VI/ADOOR-ENATHU/18-19/205 ISSUED BY THE CHIEF ENGINEER (TRANSMISSION SOUTH) DATED 27.04.2018 ALONG WITH TOWER SCHEDULE AND PROFILE.** **EXHIBIT R3(I)** **TRUE COPY OF THE APPROVED PLAN WITH RESPECT TO THE FINAL ALIGNMENT OF THE ENTIRE LINE ROUTE.**