V. Narayanan and others v. The Additional District Magistrate, Kasaragod and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA,** **1944** **WA NO. 39 OF 2023** **AGAINST THE ORDER/JUDGMENT IN WP(C) 29101/2022 OF HIGH** **COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** 1 V.NARAYANAN, AGED 70 YEARS S/O KATHIRUMMAL VELLACHI, KATHIRUMMAL HOUSE, NEAR MUCHILOTTU TEMPLE, KIZHAKKUM KARA, AJANOOR VILLAGE, KASARAGODE, PIN - 671315 2 K.NARAYANAN, AGED 70 YEARS S/O KARUPPAN,NEAR MUCHILOTTU TEMPLE, KIZHAKKUM KARA, AJANOOR VILLAGE, KASARAGODE, PIN - 671315 3 KUNHIRAMAN, AGED 65 YEARS S/O RAMAN,MUCHILOTTU TEMPLE, KIZHAKKUM KARA, AJANOOR VILLAGE, KASARAGODE, PIN - 671315 BY ADV SAJEEV KUMAR K.GOPAL ## **RESPONDENTS/RESPONDENTS:** 1 THE ADDITIONAL DISTRICT MAGISTRATE, VIDYA NAGAR, COURT COMPLEX, STADIUM ROAD,KASARAGOD, PIN - 671121 - 2 KERALA STATE ELECTRICITY BOARD, WA No.39 of 2023 2 VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695004 3 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, MAVUNKAL, KASARAGODE, PIN - 671121 4 SREEDEVI, W/O KARUNAKARAN (LATE), MUCHILOTTU HOUSE, AJANOOR P.O., AJANOOR VILLAGE, KASARAGOD, PIN - 671315 BY ADV KODOTH SREEDHARAN BY SRI.P.M.SHAMEER, GP BY SRI.B.PREMOD, SC **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA No.39 of 2023 3 ## **A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **…................................................... WA No.39 of 2023** -------------------------------------------- **Dated this the 16[th] day of March, 2023** ## **JUDGMENT** Mohammed Nias.C.P. J. The appellants challenge the judgment in WP(C)No.29101 of 2022 dated 29.11.2022 dismissing their writ petition filed challenging Ext.P1 that directed the drawing of an electric line at the request of the 4[th] respondent herein. 2. Ext.P1 order of the Additional District Magistrate (ADM), Kasargode, was challenged on three grounds (a) that it was issued in violation of the principle of natural justice as the appellants were not heard before passing the order (b) there was no jurisdiction to the ADM to pass Ext.P1 order dated 19.4.2022, as it was for the telegraph authority to decide the feasibility of the shifting of the line and only if such authority refrain from any action or rejecting a claim, the ADM gets jurisdiction and (c) the way through which the WA No.39 of 2023 4 line is directed to be drawn is a private pathway and not a public pathway as mentioned in Ext.P1 order. 3. The 4[th] respondent, had filed a counter affidavit stating that the shifting of the electric line passing over her property also supplies electricity to the writ petitioners and the writ petitioners are the beneficiaries of the electric connection availed from the line passing over the residential house of the 4[th] respondent. The counter affidavit also denies the allegation that they were not heard before passing Ext.P1 order and reiterates the contention that the property over which the line crosses is a public pathway as revealed from the village records. It is also submitted that the 4th respondent is a widow with a daughter who is a physically challenged person and on a request made by her to the State Commissioner, constituted under the Persons With Disabilities Act, for shifting of the electric line and Ext.R4(a) order was passed, which directed the KSEB to reduce the charges for shifting the line. 4. The learned single Judge, who considered the writ petition found that by Ext.P1, and in particular, the site plan produced along with the same it can be seen that the shifting is directed through the boundary of the property and not through the middle of the way as suggested in the impugned order which is a suitable route and no WA No.39 of 2023 5 person or trees will be affected by the shifting. The writ petition was accordingly dismissed. 5. Before us, the learned counsel for the appellants, Sri. Sajeev Kumar K. Gopal reiterates the contentions taken in the writ petition that the order of the ADM, Ext.P1 is against Section 17 of the Indian Telegraph Act,1885. He also cites the judgmenst in **Gopinathan Nair v. State of Kerala** [2015 (3) KHC 368] and **Moan M. Joseph and others v. Assistant Executive Engineer, Ernakulam and others** . (2014 KHC 3036). 6. The learned counsel for the 4th respondent cites the judgment of the Bombay High Court in **Jarnail Singh v. Maharashtra State Electricity Transmission Co. Ltd, Nagpur** (2015 KHC 3987). 7. Having heard the learned counsel on either side, we are of the view that the judgment of the learned single Judge calls for no interference. It is clear from the site plan produced along with Ext.P1 order and as rightly noticed by the learned single Judge that no damage will be caused to the property of the appellants or to any trees and that the route suggested by the KSEB on the request of the 4[th] respondent is the most feasible one. We also find that the WA No.39 of 2023 6 ADM was the authority to consider the dispute if any, and since it is clear that the writ petitioners dispute the request of the 4[th] respondent to draw the line, ADM was entitled under law to decide the same, and the contention of the appellants that his order is without jurisdiction cannot be accepted. The appellants had got the electric connection and their contention that further connections cannot be drawn from the post beyond their property or that the width of the way will be reduced etc. cannot be countenanced as the Board had suggested the route after a physical inspection. We also find that the contention of the appellants that the way in question has been changed subsequently in the revenue records as a private pathway also cannot be accepted as the said change is made after the passing of the impugned order as is clear from the additional documents produced. Thus the finding in the impugned order that it is a public pathway is factually correct as on the date of passing of the order it was. 8. We also note the fact that the 4[th] respondent is a widow with a physically challenged daughter, as is evident from Ext.R4(a) order. We find that by the order impugned in this writ petition, no injustice at all has been caused to the appellants, but on the contrary, Ext.P1 order serves the interest of justice as far as the 4[th] respondent is concerned. Such an order, Ext.P1 need not be WA No.39 of 2023 7 interfered with in the exercise of power under Article 226 of the Constitution of India, much less in an appeal as interference will result in injustice. We are fortified in the said view by the judgment of the Supreme Court in **Noida Industrial Development Authority v. Ravindra Kumar** (JT 2022 -2-203) as well as the judgment of the Division Bench of this Court in **Kendriya Vidyalaya Sangathan v. Kendriya Vidyalaya Non-teaching Staff Association** [2008 (1) KLT 34]. Writ appeal fails and accordingly the same is dismissed. ## **Sd/- A.K. JAYASANKARAN NAMBIAR, JUDGE** **Sd/- MOHAMMED NIAS C.P. JUDGE** dlk/20.3.2023 WA No.39 of 2023 8 ## **APPENDIX OF WA 39/2023** ## **PETITIONERS ANNEXURES** |Annexure|1|TRUE COPY OF THE RECEIPT REGARDING THE| |---|---|---| |||REMITTANCE OF THE LAND TAX IN THE NAME| |||OF THE PETITIONERS ISSUED BY THE VILLAGE| |||OFFICER AJANOOR VILLAGE DATED 28 - 02 -| |||2023.| |Annexure|2|TRUE COPY OF THE POSSESSION CERTIFICATE| |||ISSUED BY THE AJANOOR VILLAGE OFFICE| |||DATED 03-03-2023| |Annexure|3|TRUE COPY OF THE COMMUNICATION FROM THE| |||SECRETARY OF AJANOOR GRAMA PANCHAYAT TO| |||THE 1ST PETITIONER HEREIN TO THE EFFECT| |||THAT THE SAID PATHWAY IS NOT INCLUDED IN| |||THE ASSET REGISTER OF THE GRAMA| |||PANCHAYAT DATED 30 - 01 - 2023.|