Venugopalan C. v. District Collector (Malappuram) and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 07TH DAY OF FEBRUARY 2020 / 18TH MAGHA, 1941** ## **WP(C).NO.30166 OF 2019(U)** ## **PETITIONER :** **VENUGOPALAN C., AGED 59 YEARS S/O. NARAYANA IYER, CHOLAKOTTIL HOUSE, VADAKKUM MURI, ANAKKAYAM, MALAPPURAM DISTRICT,PIN-676 121** **BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **RESPONDENTS :** - **1 THE DISTRICT COLLECTOR/ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, MALAPPURAM,PIN-676 504.** - **2 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD LIMITED, MANJERI SOUTH, MALAPPURAM, PIN-676 121.** - **3 KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** - **4 SURESH KUMAR, NOTTATHIL HOUSE, VADAKKUM MURI ANAKAYAM, MALAPPURAM-676 121.** - **5 ABOOKACKER, KAKAINGAL HOUSE, IRUMBUZHI, MALAPPURAM DISTRICT,PIN-676 121.** - **6 SAINABA,** - **KAKAINGAL HOUSE, IRUMBUZHI, MALAPPURAM DISTRICT, PIN-676 121.** - **R4 BY ADV. SRI.K.RAKESH** ## **SRI SUDHEER GANESH KUMAR.R S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.30166 of 2019 2 ## **JUDGMENT** The petitioner impugns Ext.P3 order passed by the 1[st] respondent under Section 16(1) of the Telegraph Act, 1885 by which permission was granted to the 2[nd] respondent to provide electric connection to the 4[th] respondent through the road proposed by the KSEB and recommended by the revenue authorities. 2. The petitioner herein and the 4[th] respondent are neighbours. As a matter of fact, it is apparent from the sketch prepared by the Village Officer, Anakayam, which is produced as Ext.R4(b) that the 4[th] respondent is residing at a distance of just under 35 meters towards the southeastern side of the property of the petitioner. 3. The facts indispensable for the present adjudication portray that the 4[th] respondent, who was having no electric connection to his residential home, approached the 2[nd] respondent and applied for the same. The 2[nd] respondent visited the spot and conducted an inspection. He found that the most ideal and feasible option was to draw the W.P.(C) No.30166 of 2019 3 connection from a post situated in the property of the petitioner. He found that the post was just 25 meters away and alternative posts were situated at considerable distances. The petitioner, being aggrieved, raised objection. His primary objection was that the 4[th] respondent had sexually abused his mentally challenged daughter and a crime had been registered as Crime No.116 of 2016 of the Manjeri Police Station inter alia under Section 354A(1) of the IPC. Due to the above fact, it would be grossly objectionable to insist that the 4[th] respondent should be permitted to draw electric line from the post situated in his property. He also contended that there are alternate options and though it may incur more expenses, in view of the peculiar facts, the 2[nd] respondent ought to have avoided drawing the line from the post situated in his property. 4. Since an objection was raised, the matter was referred to the 1[st] respondent by the 2[nd] respondent. 5. Reports were obtained from the 2[nd] respondent, the Tahsildar, Ernad and also the village officer by the 1[st] respondent. The report of the Tahsildar revealed that supply to the 4[th] respondent could be provided from three posts, which were situated at a distance of 130 meters, 200 meters and 25 mts. The nearest post is situated in the property of the W.P.(C) No.30166 of 2019 4 petitioner. He also reported that drawing the line from that post was the most feasible and the least expensive. The 2[nd] respondent filed a statement stating that if line is drawn from the post situated in the property of the petitioner, supply could be given by providing a overhead weather proof line of 25mts and a service wire of 15mts. If the alternate route is chosen, an overhead line had to be drawn for a distance of about 100 mts in addition to 12 mts of weather proof line. 6. The 1[st] respondent heard the petitioner, the 4[th] respondent, the KSEB officers and also the revenue authorities and by Ext.P3 order came to the conclusion that the line proposed by the KSEB was the cheapest and the most convenient. The 2[nd] respondent was permitted to provide electric connection to the 4[th] respondent through the said route. 7. Sri.K.M.Satyanatha Menon, the learned counsel appearing for the petitioner, submitted that the order passed by the 1[st] respondent cannot be sustained. According to the learned counsel, the alternate routes suggested by the petitioner were the most feasible and convenient and without noticing this fact, the 1[st] respondent has granted permission to the 2[nd] respondent. He would also contend that section 16 of the Act provides for assessing the damages caused to the owner of the land and W.P.(C) No.30166 of 2019 5 according to him, the damage to person and reputation also would be covered under the same. The registration of a crime against the 4[th] respondent is also highlighted by the learned counsel to bolster his submissions. 8. I have heard Sri.Sudheer Ganesh Kumar, the learned standing counsel appearing for respondents 2 and 3, Sri.K.Rakesh, the learned counsel appearing for the 4[th] respondent and the learned Government Pleader. The learned standing counsel appearing for the respondents 2 and 3 submitted that the line can only be drawn from the property of the petitioner and his grievance can be allayed by using weather proof lines for the entire distance and not just for 25 meters. 9. I have bestowed my thoughtful considerations to the rival submissions made across the bar and have perused the records. 10. In **Elizabeth George and Others** v. **Deputy Chief Engineer, KSEB, Kottayam and Ors[1]** , a learned Single Judge of this Court relying on the earlier Full Bench decision of this Court in **Bharat Plywood and Timber Products Private Ltd.** v. **Kerala State** 1[2013 (3) KHC 686] W.P.(C) No.30166 of 2019 6 ## **Electricity Board Trivandrum and Others[2]** , had occasion to detail the procedure to be followed by the District Magistrate who receives a reference under Section 16 of the Telegraph Act. It was held that the District Magistrate has to exercise his discretion judicially after hearing the parties and after taking such evidence as is required with regard to the objections raised. A speaking order should be passed which should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same. The order should also reflect the materials relied on by the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by mala fides this Court will not be justified in interfering with such orders. 11. In **Valsamma Thomas v. Additional District Magistrate[3]** , a Division Bench of this Court after surveying the entire law on the point as well as the provisions in the statute, reiterated the scope of interference against an order passed by the District Magistrate under 2 [AIR 1972 Ker. 47] 3 [1997 (2) KLT 979] W.P.(C) No.30166 of 2019 7 ## Section 16(1) of the Telegraph Act. In paragraph Nos. 11 and 12 of the report it was observed thus: “11. It is also clear from the authorities and judicial decisions that judicial review is directed not against the decision, but is confined to the examination of the decision making process. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. 12. Thus, on a review of the authorities of this question, we come to the following conclusions: (1) The District Magistrate has to exercise his discretion judicially. (2) He has to pass the order under S.16(1) of the Telegraph Act, after hearing the parties and after taking such evidence as is required with regard to the objections raised. (3) The order passed by the Court should be a speaking order. (4) The order should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same. (5) The order should also reflect the materials relied on by W.P.(C) No.30166 of 2019 8 ## the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by malafides this Court will not be justified in interfering with such orders. This Court will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters. 12. In the case on hand, there is no dispute that the 4[th] respondent is the immediate neighbor of the petitioner. Annexure -R4(b) is the sketch prepared by the Village Officer, Anakayam. The sketch shows that the distance from the post situated in the property of the petitioner to the residence of the 4[th] respondent is 25 metres. The report from the Tahsildar, Ernad clearly shows that the post situated in the property of the petitioner is the nearest and also that drawing the line from the post is the most feasible. In the report of the 2[nd] respondent, which is produced as Ext.R4(a), he has clearly detailed that if the alternate route suggested by the petitioner is opted, an overhead line has to be drawn for over 100 metres in addition to weather proof line of 12 meters. On the other hand, if it is drawn through the post situated in the property of the petitioner, the overhead line can be limited to 25 metres. I also find that he has W.P.(C) No.30166 of 2019 9 reported that drawing the line through the alternate route suggested by the petitioner is not technically feasible. The contention of the learned counsel that the compensation towards damages referred to under Section 16 of the Telegraph Act would include damage to the person and reputation does not appeal to me. 13. A judicial review of the decision of the District Magistrate can be resorted to only in accordance with the well settled parameters that inform the exercise of such power. As held by this Court in **Indu Chandran and Ors. v. KSEB, Thiruvananthapuram[4]** , this Court will 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 is further held that 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 such reports, this Court should not normally interfere with the said decision. In the instant case, I am unable to find any infirmities in the order which is a considered one passed after hearing all sides. There is no allegation of 4 (2017 (3) KLT 420) W.P.(C) No.30166 of 2019 10 malafides nor can it be said that the order is perverse. The decision of the District Magistrate is clearly based on the technical opinion as regards feasibility given by the 2[nd] respondent and the report of the revenue officials. Furthermore, the respondents 2 and 3 have undertaken before this Court that the line drawn shall be weather proof and shall be for the entire distance. I find no reason to interfere with Ext.P3 order on any of the grounds raised by the petitioner. This Writ Petition will stand dismissed. There will be no order as to costs. Sd/- ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** ps W.P.(C) No.30166 of 2019 11 ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE FIR IN CRIME NO.116/2106 OF THE MANJERI POLICE STATION DATED 22.2.2016** **EXHIBIT P1(a) ENGLISH TRANSLATION OF EXT-P1.** **EXHIBIT P2** **TRUE COPY OF THE E COURT STATUS OF C.C. NO.336 OF 2016 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MANJERI.** **EXHIBIT P3** **TRUE COPY OF OF THE ORDER (FILE NO.DCMPM/7523/2019-E3) OF THE FIRST RESPONDENT DATED 5.11.2019.** **EXHIBIT P3(a) ENGLISH TRANSLATION OF EXT P3.** **EXHIBIT P4** **TRUE COPY OF THE ROUGH SKETCH PREPARED BY AN ENGINEER.** **EXHIBIT P4(a)** **TRUE COPY OF THE ROUGH SKETCH PREPARED BY AN ENGINEER.**