IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17116 of 2010(L)
1. P.T.GEORGE, S/O.P.U.THOMAS,
... Petitioner
2. T.A.SEBASTIAN, S/O.T.D.ANTHAPPAN,
3. M.X.JOSLINE, S/O.M.J.XAVIER,
4. GEORGE VARGHESE.M., S/O.J.VARKEY
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. KERALA STATE ELECTRICITY BOARD,
3. CHIEF ENGINEER (TRANSMISSION-SOUTH)
4. DEPUTY CHIEF ENGINEER,
5. EXECUTIVE ENGINEER,
6. ASSISTANT EXECUTIVE ENGINEER,
7. ADDITIONAL DISTRICT MAGISTRATE (A.D.M.)
For Petitioner :SRI.PHILIP ANTONY CHACKO
For Respondent :SRI.P.P.THAJUDEEN, SC, K.S.E.B
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :08/10/2010
O R D E R
C.T.RAVIKUMAR, J.
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W.P(C)No.17116 of 2010
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Dated 8th October, 2010
JUDGMENT
The question to be decided in this writ petition is whether the
drawing of electric line as proposed as per Ext.R6(b) is liable to be
interfered with on account of the fact that it is in deviation from the
original proposal as per Ext.P6. The petitioners who are joint owners of
property covered by Ext.P1 filed this writ petition on being aggrieved by
the proposal on the part of the respondents to draw the 220 KV Multi
Circuit Transmission Line from Pallikkara to Brahmapuram for evacuation
of power from the 400 KV substation being constructed by M/s.Power Grid
Corporation of India Ltd., in terms of Ext.R6(b) to the extent it proposes
to deviate at points `I’ and `J’. According to the petitioners, in the
approved alignments as per Ext.P6 the points in question were shown as
`I’ and `J’ and as per Ext.R6(b), after its approval, it has now been
decided to draw the line through the points `I1′ and `J1′ as is obvious
from Ext.P8. In short, the question is whether the proposal on the part
of the respondents to draw the line in deviation from Ext.P6 approved
plan in terms of Ext.R6(b) calls for any interference. Admittedly, the
drawal of the above line from Pallikkara to Brahmapuram was for the
purpose of getting the alloting Central share to the State. In essence, the
WP(C).No.17116/2010 2
objection raised by the petitioners is against the drawal of 220KV Multi
Circuit Transmission Line from Pallikkara to Brahmapuram through
their properties. The total length of the proposed route is 6.5 Kms.
and going by the proposed plan in Ext.R6(b) necessarily it has to pass
through the property belonging to the petitioners covered by Ext.P1.
According to the petitioners, it is a dry land. However, relying on the
revenue records the respondents contended that the route in between
the angle points `I1′ and `J1′ passes through paddy fields belonging to
the petitioners. In fact, Ext.P1 also supports that contention.
Admittedly, the present proposal to draw the line is for a public
purpose. Earlier, the petitioners raised their objections against the
drawal of line through their property as proposed as per Ext.R6(b).
Taking into account the objections raised by them, the matter was
referred under Section 16(1) of the Indian Telegraph Act read with
Section 164 of the Indian Electricity Act, 2008. After issuing notice to
all concerned parties including the petitioners a decision was taken on
the said objections, by the 7th respondent. Ext.P14 is the order. It is
challenging Ext.P14 order that this writ petition has been filed.
2. A counter affidavit has been filed in this writ petition by
respondents 2 to 6. According to them, a preliminary survey of
construction of the line was conducted in October, 2009. The route
WP(C).No.17116/2010 3
was selected in such a way ensuring that it passes through paddy
fields to the maximum extent possible so as to avoid public protest. In
other words, according to them, maximum care has been taken for the
purpose of avoiding drawing of electric line over dwelling houses and
busy junctions. In paragraph 6 of the counter affidavit it has been
stated that with a view to draw the line through paddy fields and to
avoid its entry over dry lands changes in location at certain angle
points became necessary and therefore such changes are done at
certain angle points such as C, F, G, H, I and J. According to
respondents 2 to 6, such changes were necessitated only to avoid
drawing of lines through dry lands. It is the contention of the
respondents that based on the objection raised by the petitioners the
issue was referred to the 7th respondent in accordance with the
provisions under the Indian Telegraph Act and the 7th respondent after
affording opportunities of being heard to all concerned and after
conducting a site inspection passed Ext.P14 order. According to them,
the revised route plan of Pallikkara – Brahmapuram has been made
available before the 7th respondent during the site inspection.
3. The petitioners contend that Ext.P14 is a cryptic order
and none of the contentions raised by them have been adverted to
therein. It is their further contention that being the authority clothed
WP(C).No.17116/2010 4
with power under Section 16(1) of the Indian Telegraph Act, the 7th
respondent was bound to consider all the objections raised by the
parties before taking a decision. According to them, Ext.P14 is
unsustainable because it reflects absolute non-application of mind. It
is in the said circumstances that they contend that Ext.P14 is liable to
be set aside and also pray for a direction to the respondents to draw
the line as originally proposed.
4. There cannot be any doubt with respect to the position
that in respect of drawing of electric lines the reports of technical
experts could not be ignored while examining the feasibility of routes
suggested by the parties. In this case, as already noticed, the
suggestion on the part of the petitioners is that the line should be
drawn as originally proposed. However, according to the respondents,
after Ext.P6 they have revised the plan with a view to draw the line as
far as possible only over paddy fields and it was in the said
circumstances that resurvey was conducted and pursuant to which a
revised plan was drawn with approval in January, 2010. The learned
counsel for the petitioners in the said context contended that, in fact,
there was absolutely no objection from any quarters as against the
original plan, i.e., Ext.P6. But, in the counter affidavit itself it has been
specifically stated that at the time of preparing the original plan the
WP(C).No.17116/2010 5
paddy fields were submerged in water and that is why they were
constrained to conduct a resurvey and prepare a revised plan.
5. Admittedly, the petitioners were afforded opportunity by
the District Magistrate and a site inspection was also conducted.
Admittedly, drawing of 220 KV line is for a public purpose as
mentioned above. For the purpose of enabling evacuation of power
from the 400 KV substation M/s. Power Grid Corporation of India Ltd.
has to construct a 220 KV power bay and it is from there that it has to
be evacuated. Admittedly, it is only for the purpose of getting the
alloted State’s share from the Centre that from the 400 KV line the
220 KV line is being drawn from Pallickara to Brahmapuram.
Essentially, it is for public interest. Relying on the decision of this
Court in Ajith K.N. and Others v. State of Kerala and Others
(2010 (2) KHC 895) the learned standing counsel for the respondents
submitted that in a matter wherein public interest involves the private
interest should give way to public interest. In ground `Q’ the
petitioners have contended that the change in the alignment is
proposed only for saving the lands of some interested persons. Barring
the said vague averments there is no specific averment with respect to
malafides. It is settled position that malafides have to be specifically
pleaded and proved. Since the allegation is too vague this Court
WP(C).No.17116/2010 6
cannot look into those aspects. Considering the facts thus obtained in
this case in the light of the decision in Ajith K.N. and Others v.
State of Kerala and Others (supra) compels me to come to the
conclusion that the private interest of the petitioners has to give way
to the larger public interest. However, the question is whether while
passing Ext.P14 order all the contentions raised by the petitioners
were taken into consideration by the 7th respondent and on account of
the failure on the part of the 7th respondent in not adverting to such
contentions whether any prejudice is caused to the petitioners.
According to the petitioners, a deviation as proposed as per Ext.R6(b)
would render their land purposeless and useless. In terms of the
present proposal, the line will be drawn through the centre of their
property and if line is drawn in tune with the present proposed
alignment, it will divide their property into two and make it unworthy
and useless. In fact, the learned counsel for the petitioners drawn my
attention to the fact that even respondents did not have a case that
such a deviation from Ext.P6 approved plan was proposed not based
on any objection raised by any aggrieved party. However, the learned
counsel for the respondents submitted that the circumstances that
constrained the authorities to take such a deviation have been
sufficiently explained in the counter affidavit and additional affidavit.
WP(C).No.17116/2010 7
According to them, the competent engineers after conducting a survey
have taken such a decision. That apart, prior to the passing of Ext.P14
the 7th respondent has conducted site inspection. I do not think it
proper for this Court in the said circumstances to interfere with the
proposal especially when for its accomplishment constructions have
already been started. However, evidently, there is absence of any
objection from any quarters with respect to the original plan. The
tenor of the contentions raised in the counter affidavit would suggest
that the respondents were compelled to take a decision to draw line
through the land belonging to the petitioners on account of the fact
that village records describe the property of the petitioners as paddy
field. However, according to the petitioners, long ago it was converted
to dry land and presently it is dry land and the present proposal would
render their land unworthy and useless. As already noticed, the stand
of the respondents is that the deviation was sought to be effected only
to avoid drawal of line over dry lands as far as possible. In the said
circumstances, it requires consideration. Even according to the
respondents, the construction on the point `J1′ is yet to be started.
But, according to the petitioners, they have already started the
construction of the base of the tower at the angle `I1′. Therefore, a
consideration, before starting construction at angle `J1′ as to whether
WP(C).No.17116/2010 8
it is feasible to take a deviation to minimise the hardship and
inconvenience to the petitioners would not hamper the propspects of
the present project. In fact, going through Ext.P14 order, evidently,
the 7th respondent had not adverted to any such contentions or looked
into prospects for such a deviation while passing the order. In the said
circumstances, it is essential to look into those aspects before starting
construction of tower for the purpose of drawing line from Pallikkara to
Brahmapuram at the point `J1′. Having found that those aspects were
not taken into consideration by the 7th respondent while passing
Ext.P14 order, I am of the view that Ext.P14 is liable to be interfered
to that extent. Therefore, the 7th respondent is directed to afford an
opportunity of being heard to the petitioners and 6th respondent for the
aforesaid purpose. In view of the urgency involved in this matter and
also the fact that the present project is one having public interest, the
7th respondent shall fix the date for the aforesaid purpose between 5th
and 15th of November, 2010 and shall intimate the date fixed for such
hearing to the petitioners and the 6th respondent at least three days in
advance. Any further construction at the point `J1′ for the purpose of
drawing lines in accordance with Ext.R6(b) shall be taken only after
such a decision by the 7th respondent. It is made clear that this
decision would enable the 7th respondent only to take a decision with
WP(C).No.17116/2010 9
respect to the drawing of line in between the points `I’ and `J’ i.e., to
decide whether it should be through `I’ and `J’ or through `I1′ and
`J1′.
The writ petition is disposed of accordingly.
C.T.RAVIKUMAR
Judge
TKS