Varghese @ Lonappan v. Additional District Magistrate, Collectorate, Alappuzha; The Assistant Executive Engineer, Electrical Subdivision, Kerala State Electricity Board, Pattankkadu; M.N. Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939** ## **WP(C).No. 17782 of 2017 (W)** **----------------------------** **PETITIONER :** **---------------------** **VARGHESE @ LONAPPAN, AGED 83 YEARS, S/O. MATHEW, KOTTUPPALLI HOUSE, VALAMANGALAM SOUTH P.O, THURAVOOR, CHERTHALA, ALAPPUZHA DISTRICT-688 532.** ## **BY ADVS.SRI.B.RENJITHKUMAR SRI.T.PRADEEP KUMAR** **RESPONDENT(S):** **----------------------------** **1. ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, ALAPPUZHA - 688 001.** **2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUBDIVISION, KERALA STATE ELECTRICITY BOARD, PATTANAKKAD, ALAPPUZHA DISTRICT - 688 531.** **3. M.N. ANTONY, AGED ABOUT 30 YEARS, (FATHER'S NAME NOT KNOWN TO THE PETITIONER), MADATHIL HOUSE, NEAR THIRUVENGIDAPURAM TEMPLE, VELAMANGALAM, THEKKU P.O., CHERTHALA - 688 532.** **R1 BY GOVERNMENT PLEADER SRI.GEORGE MATHEW VADAKKAL R2 BY ADV. SRI.SUDHEER GANESH KUMAR R., SC, R3 BY ADVS. SRI.JOMY GEORGE SRI.DEEPAK MOHAN SMT.LIZA POWELL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 17782 of 2017 (W)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 24/05/2017 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 31/03/2017 ISSUED BY THE 1ST RESPONDENT TO THE 1ST RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE REPLY DATED 17/04/2017 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 22/04/2017 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE EXCHANGE DEED NO. 2113 DATED 28/09/1987 OF SRO, CHERTHALA.** - **EXHIBIT P6 TRUE COPY OF THE ROUGH SKETCH OF THE SPOT PREPARED BY THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 30/9/2016 SUBMITTED BY THE 3RD RESPONDENT FOR ELECTRIC CONNECTION** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 23/6/2017 ISSUED BY THE VILLAGE OFFICER OF THURAVOOR SOUTH VILLAGE TO THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF THE REQEUST DATED 27/3/2017 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE 2ND RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE INFORMATION DATED 31/5/2017 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT TO THE PETITIONER.** **RESPONDENT(S)' EXHIBITS** - **-----------------------------------------** - **EXHIBIT R2 TRUE COPY OF THE SKETCH PREPARED BY THE ANSWERING RESPONDENT** - **EXHIBIT R3(A) TRUE COPY OF THE SALE DEED NO.396/2010 DATED 15/02/2010 OF SRO, PATTANAKKAD.** **2/-** **-2-** ## **WP(C).No. 17782 of 2017 (W)** **EXHIBIT R3(B) TRUE COPY OF THE REPORT DATED 31/03/2017 SUBMITTED BY THE VILLAGE OFFICE, THURAVOOR (S) BEFORE THE ADDITIONAL TAHASILDAR, CHERTHALA.** **EXHIBIT R3(C) TRUE COPY OF THE APPLICATION DATED 01/04/2017 SUBMITTED BY ME BEFORE THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA EXHIBIT R3(D) TRUE COPY OF THE G.O(MS) NO.22/2016/PD DATED 06/10/2016.** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.17782 Of 2017(W ) ............................................................. Dated this the 4[th] day of July, 2017** ## **J U D G M E N T** The petitioner has approached this Court aggrieved by Ext.P1 order of the Additional District Magistrate passed under Section 16 of the Indian Telegraph Act. The facts in the writ petition would indicate that the 3[rd] respondent had sought for an electric supply to to his premises, and taking note of the objections by the petitioner the matter was referred by the respondent Board to the 1[st] respondent. The 1[st] respondent considered the proposal of the respondent Board, and finding that, there was already an existing electric line giving connection to the premises of the petitioner herein, and there was only a small portion of the line which had to be drawn from the existing posts, so as to provide connection to the premises of the 3[rd] respondent, the 1[st] respondent found that the proposal of the Electricity Board for drawing a line, from the post already installed in the petitioners premises, to the house of the 3[rd] respondent, was the most feasible proposal, and permitted the -2- ## **W.P.(C).No.17782 Of 2017(W )** Board to draw the line in accordance with the said proposal. The learned counsel for the petitioner would contend that, the drawing of the electric line to the premises of the 3[rd] respondent itself is illegal since the 3[rd] respondent's house is situated in a land, which is classified as wetland under the land data bank prepared for the region. I note in this connection, that the said objections had already been considered by the Board and by the District Collector and it was found that the objection need not stand in the way of providing electric supply to the 3[rd] respondent, in terms of the Total Electrification Scheme that was announced by the Government. 2. I have heard the learned counsel appearing for the petitioner, the learned Government Pleader for the 1[st] respondent, the learned Standing counsel for the 2[nd] respondent Board and the learned counsel for the 3[rd] respondent. 3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar and also taking note of paragraphs 7 and 9 of the judgment of this Court dated 20.06.2017 in W.P.(C).No.4589 of 2017, which reads as follows: -3- ## **W.P.(C).No.17782 Of 2017(W )** “7. As per the statutory Scheme of the Indian Telegraph Act, whenever in the exercise of powers under Section 10 in respect of any property referred to in Clause (d) of that Section, the empowered authority is resisted or obstructed, the said authority may bring the fact of resistance or obstruction to the notice of the District Magistrate, who may, in his discretion, order that the empowered authority shall be permitted to exercise his powers. The use of the phrase “in his discretion” while describing the role of the Magistrate under section 16 clearly indicates that it is a discretionary power that is granted to the District Magistrate while deciding on whether or not the empowered authority should be permitted to exercise his powers in accordance with Section 10 of the Telegraph Act. It has been held in the Full Bench decision of this Court in **Bharat Plywood and Timber products (Supra)** that, before passing an order under Section 16(1), the District Magistrate has necessarily to issue notice to all persons interested and give them an opportunity to state their objections, if any. This requirement was seen necessary since it was opined that, without giving such an opportunity, the District Magistrate would not have adequate material to decide whether or not he should pass an order that the empowered authority should be permitted to exercise his powers under section 10 of the Act. The decision of the Full Bench of this Court referred above, dealing with the scope of the discretion exercised by the District Magistrate under Section 16 has been followed by this Court in subsequent decisions including **Elizabeth George and Others v. Deputy Chief Engineer, KSEB, Kottayam and Others [2013 (3) KHC 686]** and **Johny E.C v. Additional District Magistrate, Ernakulam and Others [2015 (5) KHC 40]** . 9. The upshot of the above discussion is that, -4- ## **W.P.(C).No.17782 Of 2017(W )** inasmuch as Section 16 contemplates the exercise of a discretion by the District Magistrate, a judicial review of the decision of the District Magistrate must be resorted to only in accordance with the well settled parameters that inform the exercise of the said power. Thus, this Court would 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 might perhaps be possible for this Court to undertake a merits review of the decision of the District Magistrate also, but such instances must necessarily be rare and confined only to cases where such legal rights of citizens are breached, the need for protection of which, far outweighs the public interest sought to be attained through the exercise of the discretion. Further, when examining the rationality of the decision, as also the reasonableness of the measure, this 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 the opinion of experts, then this Court should not normally interfere with the said decision. I am of the view that, on the facts of the instant case, Ext.P1 order passed by the 1[st] respondent does not require any interference in these proceedings under Article 226 of the constitution of India. The writ petition in its challenge against the same, therefore, fails and is accordingly dismissed. -5- ## **W.P.(C).No.17782 Of 2017(W )** Taking note of the submission of the learned counsel for the petitioner that he should be permitted to make an application for the shifting of the line from his premises to a neighbouring premises, I make it clear that nothing in this judgment shall stand in the way of the respondent Board considering, independently, and on merits, any application submitted by the petitioner for shifting of the line. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/4.07.17