IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34147 of 2010(P)
1. JOHNY E.C., S/O. CHACKUNNI, AGED 60,
... Petitioner
Vs
1. THE ADDL. DISTRICT MAGISTRATE,
... Respondent
2. KERALA STATE ELECTRICITY BOARD, REP.BY
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent : No Appearance
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :12/11/2010
O R D E R
C.T.RAVIKUMAR, J.
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W.P.(C) Nos.34147, 34148
& 34216 of 2010
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Dated this the 12th day of November 2010
J U D G M E N T
In all these writ petitions the petitioners challenge the
common order passed by the Additional District Magistrate,
Ernakulam in the matter of drawing of a 33KV Feeder Line
from Kurumassery to Annamanada. Since its proposed route
was over their properties, petitioners raised objection with
respect to the said proposal. Thereupon, the Assistant
Executive Engineer, Transmission Sub Division of the KSEB
based on the objections raised by the petitioners herein, filed
a petition under Section 16(1) of the Indian Telegraph Act,
1885 read with Section.164 of the Indian Electricity Act, 2003
to remove the resistance and obstruction before the District
Magistrate, Ernakulam. Thereupon, the impugned order in
these writ petitions, viz; Ext.P5 in W.P.(C)No.34148/2010 and
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 2 :-
Ext.P8 in W.P.(C)No.34216/10 which is a common order, has
been passed by the Additional District Magistrate, Ernakulam.
In the other writ petition. the contention of the petitioners is
that on their objection no order has been passed by the
Additional District Magistrate. However, Exts.P5 and P8 viz;
the impugned common order would reveal that the
objection of the petitioners in W.P.(C)No.34147/2010 was
also considered and in fact the same was also rejected by the
said common order.
2. Before adverting to the contentions raised by the
learned counsel appearing for the petitioners in these writ
petitions, I may have to consider the circumstances under
which the Additional District Magistrate, Ernakulam has
passed the above impugned common order. For the
petitioners in W.P.(C)Nos.34147/10 and 34148/10 this is the
second round litigation and as regards the petitioners in
W.P.(C)No.34216/2010, this is the third round litigation, on
the aforesaid issue. The original orders passed by the ADM
on the same subject matter were subjected to challenge in a
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 3 :-
batch of writ petitions. As per a common judgment, produced
as Ext.P3 in W.P.(C)No.34148 of 2010, the impugned orders
permitting the Board authorities to draw the electric lines
through the proposed route were set aside. This Court found
those orders as unsustainable since there was no proper
application of mind. Accordingly, the ADM was directed to
pass fresh orders after conducting a site inspection and after
affording an opportunity of being heard to all concerned
including the petitioners in those writ petitions. As per
Ext.P3, it was directed to pass fresh orders within one month
from the date of receipt of a copy of the judgment. Pursuant
to the said common judgment, the 4th respondent herein
conducted a local inspection of the concerned site and passed
the impugned common order viz; Exts.P5 and P8 referred
above.
3. The facts expatiated above would thus reveal that
the impugned common order has been passed by the 4th
respondent in purported compliance with Ext.P3 common
judgment. They would also reveal that the earlier order
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 4 :-
passed by the ADM on the matter was set aside by this Court
as per Ext.P3 holding that the impugned orders were passed
with a closed mind. The above prelude will enable this Court
to examine the sustainability or otherwise of the impugned
order in a proper perspective. True that the common order
presently impugned in these writ petitions is a lengthy one.
However, a close scrutiny of the same would reveal that the
contentions raised by the petitioners were not properly
considered by the ADM. A perusal of the order would reveal
that the objections raised by the petitioners as also the reply
to such objections made by the Board Officials were duly
taken note of by the ADM. In Sl.Nos.1 and 2 at page No.3 of
the impugned order, the respective objections of petitioners 1
to 3 in W.P.(C)No.34148/2010 and the replies to those
objections by the Assistant Executive Engineer, Transmission
Sub Division, KSEB Chalakudy were incorporated. At Sl.No.3
in the same page the respective objection and reply in the
case of the petitioner in W.P.(C)No.34147/2010 were duly
taken note of. Likewise, at Sl.No.4 in page No.4 of the
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 5 :-
impugned order the objection of the petitioner and its reply
were incorporated. However, the consistent case of the
petitioners in all these writ petitions is that their actual
objections and suggestions were not properly looked into
by the ADM. Evidently, as per the petitioners in W.P.(C)
No.34148/2010 the alternative route suggested by them
would pass through a paddy filed and in which event, it will
not entail cutting and removing of any trees. As regards, the
petitioner in W.P.(C)No.34147 of 2010 his grievance is that
the proposed route passes through the middle of his property
that abounds with valuable fruit bearing and commercially
valuable trees. According to him, drawing of lines as
proposed would result in cutting and removing of a large
number of trees. Ext.P3(a) which is a list of trees required to
be cut and removed from his property prepared and served on
him by the Assistant Executive Engineer would reveal that the
contention is not without any basis. The petitioner in W.P.(C)
No.34216 of 2010 is a Sabha viz; the Kerala Viswakarma
Sabha. According to them the proposed route would disable
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 6 :-
them from constructing a building for their office and the
proposed nursery school. The contention of petitioners in
W.P.(C)No.34147/2010 and W.P.(C)No.34216/2010 is that
instead of drawing the lines through their properties it could
be drawn through a road/pathway without causing any
damage to any of the properties. It is true that in the matter
of drawing of electric lines for a purpose like the present one
viz; drawing of 33KV Feeder Line from Kurumassery to
Annamanada, private interests have to give way to public
interest. In the context of the contentions of the petitioners,
it is relevant to refer to a statement made by the Assistant
Executive Engineer recorded by the ADM in the impugned
order which runs as follows :-
“The total length of 33 KV line from Kurumassery Sub
station to the newly constructed Annamanada Sub station
is 9 kilo metres. Out of which only about 250 metres of
the line will be passing through residential area, rest of
the line is passing through paddy fields and along public
roads”
(Emphasis supplied)
If that be the case of the Board Officials the ADM should have
W.P.(C) Nos.34147, 34148
& 34216 of 2010-: 7 :-
considered the feasibility of the alternative routes suggested
by the petitioners which according to them will pass through
paddy fields/roads/path ways.
4. But, the question is whether objections and
suggestions made by the petitioners were considered by the
ADM while passing the impugned order. In fact, without
considering any of such objections and suggestions of the
petitioners, that too despite the specific direction by this
Court in Ext.P3 judgment for such consideration, the ADM has
issued the impugned common order. The said action indeed,
is highly depreciative and censurable. In fact, without
considering the objections and the alternative routes
suggested by the petitioners, the ADM has merely relied
on the judgment of this Court in W.P.(C)No.3278/2010
taking into account a mass petition dated 18.9.2010 submitted
against the proposal of changing the alignment of 33KV line
through ‘Kadathukadavu Vazhi’. True that there cannot be
any doubt with respect to the position that private interest
has to give way to public interest. But, in this case such a
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 8 :-
view was taken by the ADM solely on the basis of a mass
petition submitted by certain passes that too, against the
proposal of changing the alignment of 33KV line through
‘Kadathukadavu Vazhi’. In fact, the statement in the
impugned order would reveal the existence of a proposal to
change the alignment of 33KV line through ‘Kadathukadavu
Vazhi’. At any rate, the action on the part of the ADM in
disregarding the specific direction of this Court in Ext.P3
judgment and passing the impugned order in a perfunctory
manner merely by narrating the objections of the petitioner
and the replies, remarks and opinion of the Assistant
Executive Engineer, before him up to the last paragraph in
page No.7 of the impugned order cannot be considered at all
as an order passed in compliance with Ext.P3 judgment. So
also, it cannot be treated as an order issued in true discharge
of the power under 16(1) of the Act.
5. It is unfortunate to say that except the narration of
the objections and suggestions of the aggrieved parties and
also the replies, remarks and the opinion of the Assistant
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 9 :-
Executive Engineer, the order carries no independent
consideration of the ADM. In fact, there is no consideration
at all of such objections and suggestions. There could not be
any doubt that when an authority is clothed with a power to
take a decision affecting the rights of citizens that authority is
supposed to decide the matter by applying the mind.
6. Though the learned Standing Counsel and
Government Pleader vehemently opposed the contentions
raised by the petitioners, they, despite their earnest
endeavour, could not detect anything in the impugned order
which would suggest that the impugned common order was
passed in terms of Ext.P3 judgment and with application of
mind. While exercising the powers under Section 16(1) of the
Telegraph Act the concerned authority has to bear in mind
that the power conferred under Section 16(1) of the Indian
Telegraph Act read with Section 164 of the Indian Electricity
Act is not one just to consider the proposal by the KSEB and
to accept or reject the same (see the decisions of this Court
in Manikkam v. Assistant Registrar reported in [2008(1)
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 10 :-
KLT 647]). In fact, while exercising the jurisdiction, wherever
possible, a balance will have to be achieved between the
objections, grievance and the technical as well as the techno
ecological feasibility of altering the route.
In view of the above discussions, I am of the view
that the impugned common order viz; Ext.P5 in W.P.(C)
No.34148 of 2010 and Ext.P8 in W.P.(C)No.34216 of 2010 are
liable to be set aside and it is accordingly set aside. The
matter requires a further re-examination with proper
application of mind with a proper exercise of power. The
above observations are made with a view to make 4th
respondent to alert while deciding the matter and to stress
upon the need to pass orders under Section 16(1) of the
Telegraph Act with proper application of mind and in the
manner required to exercise the power conferred under the
said provision. The 4th respondent shall pass fresh orders in
place of the impugned common order. This shall be done by
the 4th respondent as expeditiously as possible at any rate,
within six weeks from the date of receipt of copy of this
W.P.(C) Nos.34147, 34148
& 34216 of 2010
-: 11 :-
judgment. To enable the ADM to pass fresh orders within the
stipulated time limit the parties are free to produce copy of
this judgment before the said authority. It is made clear that
the 4th respondent shall rehear the matter and pass fresh
orders after affording an opportunity of being heard to all the
parties concerned. It will also be open to the ADM to conduct
further site inspection if necessary.
Writ petitions are disposed of accordingly.
C.T.RAVIKUMAR, JUDGE.
Jvt