Travancore Devaswom Board v. State of Kerala & Others (W.P.(C) No. 35695 of 2023)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023/7TH AGRAHAYANA, 1945 WP(C) NO.35695OF 2023 ``` ``` PETITIONER: ``` ``` TRAVANCORE DEVASWOM BOARD, REP. BY IT'S SECRETARY DEVASWOM HEAD QUARTERS, NANDANCODE, KOWDIAR.P.O., THIRUVANANTHAPURAM, PIN 695 003 ``` ``` BY ADV G.SANTHOSH KUMAR (P). ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP.BY PRINCIPAL SECRETARY, REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT, SECRETARIAT, TRIVANDRUM, PIN – 695 001`** - **`2 THE DISTRICT COLLECTOR, COLLECTORATE, FIRST FLOOR OF CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682 030`** ``` 3THE ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, FIRST FLOOR OF CIVIL STATION, KAKKANAD, ERNAKULAM, PIN – 682 030 ``` - **`4 ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, KOTHAMANGALAM, PIN – 686 666`** - **`5 ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY KOTHAMANGALAM, PIN – 686 691`** ``` 6NELLIKUZHI GRAMA PANCHAYATH REP.BY IT'S SECRETARY NELLIKUZHY P.O., KOTHAMANGALAM, PIN – 686 691 7SRI.NARAYANAN NAMBOODIRI.E.V. INCHOORMANA, ANNAPOORNESWARI DEVI TEMPLE, THRIKKARIYOOR P.O., KOTHAMANGALAM, PIN – 686 692 ``` 2 W.P.(C)No.35695 of 2023 ``` 8SRI.NARAYANAN NAIR, KANJIRAKKATTIL, THRIKKARIYOOR P.O., KOTHAMANGALAM, PIN – 686 692 ``` ``` 9SRI.E.G.VISHNU NAMBOOTHIRI INCHOORMANA, ANNAPOORNESWARI DEVI TEMPLE, THRIKKARIYOOR P.O., KOTHAMANGALAM, PIN – 686 692 ``` ``` 10TEMPLE ADVISORY COMMITTEE, THRIKKARIYOOR MAHADEVA TEMPLE, REP.BY IT'S SECRETARY VIJEESH VIJAYAN, S/O VIJAYAN, KALARICKAL HOUSE, THRIKKARIYOOR P.O, KOTHAMANGALAM, PIN – 686 692 ``` ``` BY ADVS. ``` ``` K.S.ARUN KUMAR C.DILIP R.PRADEEP(K/47/1999) ANUSHKA VIJAYAKUMAR(K/835/2019) ``` ``` SRI.S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI.B.PREMOD- STANDING COUNSEL- KSEB ; SRI.GEORGIE JOHNY - SC KWA ; SRI.K.S ARUN KUMAR - STANDING COUNSEL - NELLIKUZHI GRAMA PANCHAYATH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.35695 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The Travancore Devaswom Board has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 order dated 16.10.2023 issued by the 3[rd] respondent Additional District Magistrate, Ernakulam; a writ of mandamus commanding the 3[rd] respondent to reconsider the matter taking note of Exts.P1 to P4; declare that the installation of transformer in the property of Thrikkariyoor Mahadeva Temple is illegal; and a writ of mandamus commanding the 4[th] respondent Assistant Executive Engineer, Kerala State Electricity Board, Electrical Sub-Division, Kothamangalam, to erect the transformer as per the earlier proposal, in the poles seen in Ext.P5 photographs, near to the pump house, as the same is more feasible to respondents 4 and 5. 2. Going by the averments in the writ petition, Thrikkariyoor Mahadeva Temple is a temple under the management of the Travancore Devaswom Board. The temple owns 3.31 Acres of land in Survey No.582/30, a temple pond comprising of 2 Cents in Survey No.582/32A, 7 Cents in Survey No.582/32B, a Bhajana Madom in 19 Cents in Survey No.582/33, 16 Cents of land in Survey No.582/34 and access 4 W.P.(C)No.35695 of 2023 towards the western side of the land having an extent of 46 Cents in Survey No.572/5A of Thrikkariyoor Village, covered by Ext.P1 Settlement Register and Ext.P2 Land Register. A pump house of the Kerala Water Authority is situated near the temple pond of Thrikkariyoor Mahadeva Temple and Annapoorneswari Temple in Ward No.6 of Nellikuzhi Grama Panchayat in Kothamangalam Taluk. There are two motor pumps of 50HP and 25HP with two consumer numbers in Kothamangalam No.2 Section of the Kerala State Electricity Board. In order to provide more drinking water to the Wards in Nellikuzhi Grama Panchayat, the 5[th] respondent Assistant Executive Engineer submitted an application before the 6[th] respondent Grama Panchayat, seeking permission for installation of a new motor of 75HP near the pump house of the Kerala Water Authority. Based on that application, the 6[th] respondent Grama Panchayat granted permission and accordingly, the 4[th] respondent Kerala State Electricity Board decided to install a new transformer. For that purpose, two iron poles were also erected by the 4[th] respondent Kerala State Electricity Board, near the pump house and the family temple belonging to respondents 7 and 9, as evident from Ext.P5 photograph. However, upon a complaint made by 5 W.P.(C)No.35695 of 2023 respondents 7 to 9, the 3[rd] respondent Additional District Magistrate, after ignoring Ext.P7 objection made by the Travancore Devaswom Board, passed Ext.P8 order dated 16.10.2023, whereby the 4[th] respondent has been directed to install the transformer in the Devaswom land, as shown in Ext.P9 photographs, where the procession in connection with ‘Arattu festival’ of the temple is being conducted. 3. On 30.10.2023, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 3, the learned Standing Counsel for KSEB took notice for the 4[th] respondent, the learned Standing Counsel for Kerala Water Authority took notice for the 5[th] respondent and the learned Standing Counsel for the Nellikuzhi Grama Panchayat took notice for the 6[th] respondent. Urgent notice by speed post was ordered to respondents 7 to 10 returnable within three weeks. By the order dated 30.10.2023, this Court stayed the operation of Ext.P8 order passed by the 3[rd] respondent and all further proceedings, for a period of one month. The said interim order is still in force. 4. Heard the learned Standing Counsel for Travancore 6 W.P.(C)No.35695 of 2023 Devaswom Board for the petitioner, the learned Senior Government Pleader for respondents 1 to 3, the learned Standing Counsel for KSEB for the 4[th] respondent, the learned Standing Counsel for Kerala Water Authority for the 5[th] respondent, the learned Standing Counsel for Nellikuzhi Grama Panchayat for the 6[th] respondent and also the learned counsel for the 10[th] respondent Temple Advisory Committee. Despite service of notice, none appears for respondents 7 to 9. 5. The issue that requires consideration in this writ petition is as to whether any interference is warranted on Ext.P8 order dated 16.10.2023 of the 3[rd] respondent Additional District Magistrate, Ernakulam. 6. Though the learned counsel on both sides have raised various legal and factual contentions, we do not propose to consider all those aspects in this writ petition since it _prima facie_ appears that Ext.P8 order of the 3[rd] respondent Additional District Magistrate, Ernakulam is one issued in violation of the principles of natural justice. 7. Based on the petition filed by respondents 7 to 9, the 3[rd] respondent Additional District Magistrate conducted a personal hearing on 01.08.2023, which was followed by the 7 W.P.(C)No.35695 of 2023 hearing conducted on 01.09.2023. It is thereafter that the 3[rd] respondent called for a report from the 4[th] respondent Assistant Executive Engineer, who submitted a report dated 05.09.2023, which is reference No.6 in Ext.P8 order. It is based on the said report of the 4[th] respondent, that the 3[rd] respondent Additional District Magistrate passed Ext.P8 order. The procedure adopted by the 3[rd] respondent while passing Ext.P8 order is in clear violation of the law laid down by this Court in **Harrisons Malayalam Ltd v. Kerala State Electricity Board [1988 (2)** **KLT 248]** . Paragraph 9 of that judgment reads thus; “9. I feel that that observation was not very much necessary for the decision of that case. Normally, the Electricity Board approaches the District Magistrate for permission when the neighbouring owner objects that the power line cannot be taken through his property. Notice is given to the objector. He is given an opportunity to file his objection and an opportunity to be heard. He is allowed to appoint a counsel and argue his case. All these parameters are indicative of the fact that the authority is exercising though not a judicial function, he is exercising a quasijudicial power. The Full Bench in **Bharat Plywood and Timber Products Pvt. Ltd. v. Kerala State Electricity Board [1970 KLT 872]** also points to the fact that the District Magistrate is obliged to exercise a judicial discretion. In this context, I feel that the observation that the power exercised by the District Magistrate under 8 W.P.(C)No.35695 of 2023 Section 16(1) of the Indian Telegraphs Act is ministerial in nature is open to doubt. Applying the decision of Paripoornan, J., - **Kesavan v. Additional District Magistrate [1986 KLT 395]** , I have to say that in this case, the District Magistrate was not exercising his power properly for the reason that he has stated in his decision "the matter was further examined in the light of the arguments at the time of hearing and the further details collected from the Assistant Executive Engineer". Plainly speaking 'the further details collected from the Assistant Executive Engineer' were not known to the petitioner. He had no opportunity to contradict or to explain the adverse effect of the further details collected by the District Magistrate. I am of the opinion that an authority which is by law invested with power to affect the property rights of one person is bound to give such person an opportunity of being heard before it proceeds to act on some materials adverse to the cause he wanted to espouse before the authority. This I feel is a rule of universal application and founded on the plainest principles of justice, whether the authority acted in exercise of a quasi judicial power or ministerially". 8. The learned counsel for the 10[th] respondent would also point out the maintainability of the petition filed by respondents 7 to 9 before the 3[rd] respondent Additional District Magistrate, relying on the judgment of this Court in **Kuniyil Sudheesh and another v. Kerala State Electricity Board, Pattom and another [2009 (3) KHC 453]** and that in 9 W.P.(C)No.35695 of 2023 ## **Sunilkumar G. v. Kerala State Electricity Board, Tvm and** **others [2015 (1) KHC 430]** . In those decisions, it was held that when an electric post or transformer is erected outside the property of a private person, the objection relating to such installations cannot be referred to the District Magistrate, invoking the provisions under Section 16(1) of the Telegraph Act 1885. 9. We do not propose to consider the above legal aspect in this proceedings, since it has already been found that the procedure adopted by the 3[rd] respondent Additional District Magistrate while passing Ext.P8 order is in violation of the principles of natural justice. In such circumstances, this writ petition is disposed of by setting aside Ext.P8 order dated 16.10.2023 of the 3[rd] respondent Additional District Magistrate, Ernakulam and by directing the said respondent to reconsider the application made by respondents 7 to 9, with notice to both sides. It is for the 10[th] respondent Temple Advisory Committee to raise the question of maintainability of the petition made by respondents 7 to 9, before the 3[rd] respondent Additional District Magistrate, in which event, the said respondent shall consider the same as a 10 W.P.(C)No.35695 of 2023 preliminary issue before proceeding with that petition on merits. The 3[rd] respondent is directed to pass fresh orders as directed above, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** ded 11 W.P.(C)No.35695 of 2023 ## **`APPENDIX OF WP(C) 35695/2023`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF THE SETTLEMENT REGISTER.`** - **`Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE LAND REGISTER MAINTAINED BY THE TDB.`** - **`Exhibit P3 TRUE COPY OF THE LITHO MAP OF THE PROPERTY OBTAINED FROM THE VILLAGE OFFICER, THRIKKARIYOOR DATED NIL.`** - **`Exhibit P4 TRUE COPY OF THE LITHO MAP OF THE PROPERTY OBTAINED FROM THE DISTRICT SURVEY SUPERINTENDENT, ERNAKULAM ON 26/10/2023.`** - **`Exhibit P5 PHOTOGRAPHS SHOWING THE EXISTING POSITION OF THE TRANSFORMER AND THE POLES BEING ERECTED FOR INSTALLING NEW TRANSFORMER.`** - **`Exhibit P6 TRUE COPY OF THE NOTICE DATED 22/08/2023 ISSUED BY THE 2ND RESPONDENT.`** - **`Exhibit P7 TRUE COPY OF THE OBJECTION DATED 11/09/2023 SUBMITTED BY THE ASSISTANT DEVASWOM COMMISSIONER, THRIKKARIYOOR BEFORE THE 3RD RESPONDENT.`** - **`Exhibit P8 TRUE COPY OF THE ORDER NO. DCEKM/6380/2023M5 DATED 16/10/2023.`** - **`Exhibit P9 PHOTOGRAPHS SHOWING THE PROPERTY OWNED BY THE TRAVANCORE DEVASWOM BOARD WHEREIN THE SHIFTING OF TOWER IS PROPOSED.`** - **`Exhibit P10 TRUE COPY OF THE NEWS REPORTS PUBLISHED IN MATHRUBHUMI DAILY AS WELL AS MALAYALA MANORAMA DAILY DATED 18/09/2023.`**