IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9724 of 2010(M)
1. BALAKRISHNAN EZHUTHACHAN,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE ASST.EXECUTIVE ENGINEER,
3. THE ADDL.DIST.MAGISTRATE,
4. RAMANARAYANAN, RAMATTOOR VEEDU,
For Petitioner :SRI.C.A.CHACKO
For Respondent :SRI.P.P.THAJUDEEN, SC, K.S.E.B
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :24/06/2010
O R D E R
P.R.RAMACHANDRA MENON, J
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WP(C) NO. 9724 OF 2010
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Dated this the 24th day of June, 2010
JUDGMENT
The petitioner has approached this Court with the following prayers.
(i) Issue a writ of mandamus or any other appropriate
writ, order or direction, directing the 2nd respondent not to draw
electric line through the property owned by the petitioner.
(ii) Declare that proceedings initiated by the 2nd
respondent before the 3rd respondent without making the
petitioner as a party is illegal.
(iii) To issue such other reliefs as this Hon’ble Court
may deem fit ad proper in the circumstances of this case.
The respondents 1 and 2 have filed a counter affidavit stating that the
disputed property stated as belonging to the petitioner is an existing pathway
leading to the property of the daughter of the petitioner, by name Chandrika.
Notice has already been issued to Chandrika and thereafter the proceedings
were finalised by the ADM as per order dated 23.12.2009 produced and
marked as Ext.R1(b) along with the counter affidavit. With reference to Ext.R1
(a) sketch produced along with the counter affidavit, the learned standing
counsel submits that, the line was originally intended to be drawn through the
pathway, by planting a post in the property of Chandrika (daughter of the
petitioner) and then to draw the line in the manner shown as ‘JHG’ to give
connection to the 4th respondent and others concerned. Subsequently, the
ADM suggested a different course, whereby the line was intended to be
drawn from the point ‘K’ in the pathway, directly to cross through the corner of
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the property of one Mr.Narayanan, who has given consent in this regard and
then to proceed to the point ‘G’ to provide connection to the 4th respondent;
thus sparing the property of the daughter of the petitioner.
2. It is however conceded by the learned standing counsel for the
respondents 1 and 2 that Ext.P1 objection was submitted by the daughter of
the petitioner and it was accordingly, that she was heard while passing the
order by the ADM. Specific objections were raised in Ext.P1 stating that the
pathway actually belonged to the father of the aforesaid Chandrika. The matter
was intended to be pursued by the petitioner himself by filing Ext.P2
objections, followed by Ext.P3 lawyer notice. The rights and interest of the
petitioner over the property through which the line is sought to be drawn have
not been considered any where by the ADM while passing Ext.R1(b). It is
brought to the notice of this Court by the learned counsel for the petitioner that
Ext.R1(b) was never passed with any notice to the petitioner, as no reference
is made anywhere therein and that the petitioner came to know about the same
only on filing the counter affidavit.
3. Eventhough the grievance, if any, of the daughter of the petitioner
stands redressed, in so far as planting of the post in her property has been
spared, the fact remains that a post is to be planted in the ‘pathway’, either at
the point ‘K’ or ‘J’. Since there is no dispute with regard to the right of
ownership of the pathway, which is stated as vested with the petitioner, this
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Court finds that it was very much necessary for the ADM to have served a
notice to the petitioner, before the proceedings were finalised. The learned
counsel for the petitioner submits that, the petitioner has assigned only an
extent of 5 cents of land to his daughter Chandrika; the petitioner is still having
property there, access to which is through the ‘pathway’, through which the line
is proposed to be drawn.
3. In the above circumstance, this Court finds that the matter has to
be reconsidered by the 3rd respondent with proper notice to the petitioner and
others concerned, before the proceedings are finalised. Accordingly, the order
stated as passed by the 3rd respondent (Ext.R1(b)] is set aside and the 3rd
respondent is directed to reconsider the matter giving notice of hearing to all
concerned including the petitioner, Chandrika as well as the beneficiaries
concerned. The proceedings as above shall be finalised in accordance with the
relevant provisions of law, as expeditiously as possible, at any rate, within ‘six’
weeks from the date of receipt of a copy of this judgment.
The Writ Petition is disposed of accordingly.
P.R.RAMACHANDRA MENON
JUDGE
dnc