IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19437 of 2009(Y)
1. SMT.ANNIE MATHEW, AGED 57 YEARS,
... Petitioner
Vs
1. THE CHIEF MANAGER(TLC),POWER GRID
... Respondent
2. THE SECRETARY
3. ADDITIONAL DISTRICT MAGISTRATE,
For Petitioner :SRI.N.JAMES KOSHY
For Respondent :SRI.V.A.MUHAMMED
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :30/07/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 19437 OF 2009 (Y)
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Dated this the 30th day of July, 2009
J U D G M E N T
The challenge in this writ petition is against Ext.P7, the order
passed by the 3rd respondent exercising his powers under Section
16 of the Indian Telegraph Act read with Section 164 of Indian
Electricity Act, 2003 .
2. Facts of the case are that the petitioner is the owner
of 3.15 Ares of land in Sy.No.997/1 of Mukundapuram Taluk. The
2nd respondent Panchayat also purchased an adjacent plot of 50
cents vide Document No.1148/82 dated 30.3.1982. A 220 KV line
from Edomon to Trichur, is passing through the aforesaid plot of
land belonging to the Panchayat. 1st respondent is proposing to
construct a 400 KVA line as part of the national grid and the
proposal was to draw the line through the existing corridor of the
220 KV line mentioned above.
3. The 2nd respondent objected to the proposal on the
ground that if 400 KV line is drawn, they will not be able to
construct a gas crematorium in their plot of land and requested to
shift the alignment. Thereupon the 1st respondent made an
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application to the 3rd respondent requesting for removing the
obstruction offered by the 2nd respondent. 1st respondent issued
Ext.P1 notice to the petitioner and Ext.P2 is the objection filed
contending that if the alignment of the line is shifted to her
property, several yielding rubber trees will have to be cut and
removed and that she will not be in a position to enjoy the whole
land. Thereafter parties were issued Ext.P3 notice of hearing and
were heard on 23/12/2008. During the course of the proceedings
before the 3rd respondent, in order to save her agricultural land,
petitioner filed Ext.P4, where she offered 50 cents of land
belonging to her to the Panchayat in exchange of the 50 cents
already purchased by the Panchayat, so that the line could be
drawn through the existing corridor avoiding her property and the
Panchayat can also construct its gas crematorium. The proposal
made by the petitioner in Ext.P4 reads as under.
I have agreed to the exchange of equal extent of land,
adjoining to their existing plot, to Meloor Grama
Panchayat for construction of the cemetery, so that the
gas pipe of 30 mtr height can fall outside the coverage
area of the electric line between tower no.57/0 and
tower no.58/0. During the discussion, they have agreed
to the exchange of property, as it facilitates the
construction of the cemetery, and for drawing the
electric line through the existing route as and when
required. In the circumstance, there is no need of a
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deviation of power line between tower 57/0 and tower
58/0. Large scale cutting of trees can be avoided if line
is drawn as per the existing route.
4. Along with Ext.P5, petitioner also submitted a sketch.
The matter was considered by the Additional District Magistrate
and Ext.P7 order was passed. It must be stated that the
suitability of this plot offered by the petitioner was not disputed
by the 1st respondent. In Ext.P7, the aforesaid suggestion made
by the petitioner was also considered, but the ADM noted that the
Panchayat had not expressed their willingness to accept the offer
made by the petitioner. Thereafter taking into account that offer
also, the ADM passed the following order, which reads as under:
Out of the two options and three alternatives
discussed above, option 1 is seen most feasible as the
proposed gas crematorium can be avoided from the
line alignment. It is less inconvenient to respondent
No.1 as the tower and line will be through the western
side of her pineapple garden. Regarding the mutual
exchange of land, Panchayat had not expressed their
willingness. Moreover, it cannot be considered until it
is materialized or Panchayat make a request before
the Power Grid corporation to draw the 400 KV electric
line through the existing 220 KV alignment, on the
ground that they intend to exchange land with
respondent No.1. Then the request is to be honoured
and line drawn accordingly. Otherwise, the line is to
be drawn as per Option No.1
5. A reading of this order shows that if the offer made by
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drawn through the land offered by the petitioner. Once Ext.P7
order was passed by the ADM, petitioner submitted Exts.P8, P9
and P10 representations to the Panchayat, to the Minister and to
the Collector himself, requesting that the offer made by her in
Ext.P4 be considered and a decision be taken. While there was no
response from any one of the aforesaid parties, attempt was
made to construct the tower in the petitioner’s property and
thereupon this writ petition was filed seeking the prayers
mentioned above.
6. In this writ petition, Panchayat has filed an affidavit
stating that the offer made by the petitioner was considered in
the Panchayat meeting held on 22/7/2009 and that the
Committee decided to reject the offer. Proceedings of the
meeting held on 22/7/09 has been produced as Ext.R2(a).
7. In Ext.R2(a), three reasons are stated to reject the
offer made by the petitioner. The first reason is that if any
change in the alignment is to be made, that will involve huge
expenditure to the Panchayat. Apart from stating that change in
alignment will result in expenditure, in what manner expenditure
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will fall on the Panchayat is not mentioned in the resolution. As
already stated, the tower is to be constructed and the line is to be
drawn by the 1st respondent and if the alignment is to be shifted,
it cannot result in any added expenditure to the Panchayat and
even the 1st respondent does not have a case to that effect.
Therefore, the first reason stated in Ext.R2(a) does not appeal to
me at all.
8. Counsel for the Panchayat raised a contention that the
land was acquired for the purpose of constructing a gas
crematorium and therefore, exchange was not possible. I do not
think that the said submission is factually correct. This is for the
reason that in para 2 of this writ petition, the petitioner has
specifically averred that the land in question was purchased by
the Panchayat on 30/3/82 by document No.1148/82. This
averment is not denied. If so the theory of acquisition does not
seem to be factually correct.
9. The second reason stated in Ext.R2(a) resolution is that
the land in question was purchased by the Panchayat with the
specific purpose of constructing a crematorium. It is stated that
the land offered by the petitioner is situated in closer proximity to
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residential areas and there is possibility of complaints from the
general public. In so far as the contention that there is possibility
of objection from the general public is concerned, this concern of
the Panchayat certainly needs to be addressed. The location of
the crematorium can only be in terms of Kerala Panchayat Raj
(Burial and Burning Grounds) Rules, 1998. Therefore, the land
offered by the petitioner can be accepted only if it satisfies the
prescriptions in the said rule. When this contention was raised,
counsel for the petitioner submitted that if the plot of land
presently offered by the petitioner is not suitable as per rules
referred to above, the petitioner is willing to offer alternate
suitable plot of land, which will satisfy the requirement of the
rules and also the requirements of the 1st respondent in all
respects. In the light of this offer made by the petitioner, the fact
that the land offered by the petitioner lies close to residential area
and the likelihood of being objected need not stand in the way of
the Panchayat in accepting the offer made by the petitioner.
10. The third objection raised in Ext.R2(a) is that
permission of the Government is necessary for exchange of land.
When projects such as this are executed, it is the duty of all
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concerned to ensure that the damage caused to a citizen is the
minimum. For this purpose, if any practical decisions are to be
taken and compromises are to be made, the authorities are
deemed to be competent for the same and their decisions, so
long as it is bonafide and reasonable, will be upheld. Having
regard to the fact that, in this case, this Court is satisfied that if
the offer made by the petitioner is accepted, it will help the
petitioner to save about three acres of agricultural land, and at
the same time the purposes of respondents 1 and 2 can be
satisfied, I do not think this technical requirement again should
stand in the way of the Panchayat, provided the land offered is
suitable for the purposes of respondents 1 and 2. Therefore, this
reason in Ext.R2(a) for rejecting the offer made by the petitioner
is also unsustainable .
11. In the light of the above, I dispose of this writ petition
with the following directions.
(1) That the Panchayat and the 1st respondent shall
inspect the land offered by the petitioner and if it is found that the
land in question satisfies the requirements of the Kerala
Panchayat Raj (Burial and Burning Grounds) Rules, 1998 and the
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requirements of the 1st respondent, the land offered by the
petitioner will be accepted and the 1st respondent shall draw the
line through the land offered by the petitioner and accepted by
the 2nd respondent.
(2) If for some reason, the plot now offered by the
petitioner is not suitable, it will be open to the petitioner to offer
another suitable plot of land, which offer shall be made
immediately on being notified of the same. Once such an offer is
made, respondents 1 and 2 will inspect the said land and if it
meets their requirements, accepting the offer, the line shall be
drawn through such alignment.
(3) It is made clear that once the aforesaid process is
completed and it is found that the land presently offered or plots
of land likely to be offered are not suitable for the requirements of
respondents 1 and 2, it will be open to the 1st respondent to draw
the line through the alignment as allowed in Ext.P7 order of the
3rd respondent.
(4) It is directed that the offer, inspection and the
finalisation of the alternative plots should be expedited and the
whole process should be completed at any rate within 3 weeks
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from the date of production of a copy of this judgment, so that the
1st respondent can draw the line without any further delay.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp