IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 WP(C).No. 18826 of 2010(C) --------------------------------------- PETITIONER(S): ----------------------- PRAMEELA GEORGE, W/O.LATE GEORGE VARGHESE, AGED 42 YEARS, C/O.PROMOD GEORGE, ERALIYILMANOOKKADATHIL HOUSE, NORTH SIDE OF POLICE PARADE GROUND, COLLECTORATE P.O., KOTTAYAM-2. BY ADV. SRI.JACOB E SIMON RESPONDENT(S): -------------------------- 1. THE ASSISTANT EXECUTIVE ENGINEER, K.S.E.B., ELECTRICAL SUB DIVISION, KOTTAYAM. 2. THE DEPUTY COLLECTOR (GENERAL) AND ADDITIONAL DISTRICT MAGISTRATE, KOTTAYAM. 3. KSEB., REPRESENTED BY ITS SECRETORY, VYDUTHY BHAVAN, TRIVANDURM. *ADDL. R4 TO R6 IMPLEADED ADDL. R4: NARAYANAN. V., DHARSANA, PEROOR ROAD, ETTUMANOOR P.O., KOTTAYAM DT. ADDL. R5: ROY M.V., MALIAKEL HOUSE, THAZGHATHANGADY P.O., KOTTAYAM. ADDL. R6: MAICHEL N.M., THELPURAYIL HOUSE, PALLIKKONAM, PUTHANANGADY P.O., KOTTAYAM. * ADDL. R4 TO R6 ARE IMPLEADED AS PER ORDER DATED 08/12/2010 IN I.A.NO.8307/2010. R2 BY GOVT. PLEADER MR.P.M. MANOJ. R1 & R3 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2010, ALONG WITH WPC NO. 24496 OF 2010 AND WPC NO. 25745 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C) NO. 18826/2010-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION FILED BY THE FIRST RESPONDENT HEREIN U/S 16(1) OF INDIAN TELEGRAPHIC ACT BEFORE THE SECOND RESPONDENT HEREIN. EXT.P2: COPY OF THE INTERLOCUTORY APPLICATION BEFORE THE SEOND RESPONDENT PRAYING FOR A HEARING ON THE MAINTAINABILITY OF THE EXHIBIT P1 PETITION. EXT.P3: COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 08/06/2010. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE SALE DEED NO.2383/2007 OF SUB REGISTRY, KOTTAYAM. EXT.R1(b): COPY OF THE AGREEMENT NO.1817/2004 DATED 05/05/2004 OF SRO, KOTTAYAM. EXT.R1(c): COPY OF THE PHOTOGRAPHS SHOWING THE POSTITIONS OF THE NEWLY ERECTED POSTS ON THE SIDE OF THE PRIVATE ROAD. //TRUE COPY// P.S. TO JUDGE rs C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)Nos.18826, 24496 & 25745 of 2010 ---------------------------------------- Dated 8th December, 2010 JUDGMENT Common issues based on common facts posed for consideration in these writ petitions and therefore, they were heard jointly and are being disposed of by this common judgment. For the sake of convenience, the documents produced and marked in W.P.(C)No.25745 of 2010 are being referred to hereinafter in this judgment in the manner they are set out therein unless otherwise specifically mentioned. The facts, in succinct, necessary to dispose of these writ petitions are as follows:- 2. In W.P.(C)No.25745 of 2010 respondents 3 and 4 submitted applications before the Assistant Engineer, Electrical Section, Kottayam Central for shifting of an age-old existing 11 KV electric line from their respective properties. Its genuineness and feasibility were enquired into and later, it was proposed to shift the same through the nearby pathway. One Sri.N.M.Michael and one Smt.Prameela George had raised objections against the said proposal. Thereupon, to avert the resistance and obstructions a petition was filed before the first respondent and thereupon, the first respondent passed Ext.P3 order on 13.7.2010 WP(C).No.18826/2010 & connected cases 2 permitting shifting the line through the proposed route. W.P.(C)No.25745 of 2010 has been filed challenging Ext.P3 order passed by the first respondent. The further prayers in the said writ petition are to issue a writ of mandamus commanding the first respondent (sic. the 2nd respondent) to remove all the electric connections given in obedience to Ext.P4 (sic. Ext.P3) through the line PQR evidenced by Ext.P2 and to direct the first respondent to hear the objections of the petitioner with regard to the proposal of drawing of electric lines through PQR as evidenced by Ext.P5 and for such other reliefs. W.P.(C)Nos.18826 and 24496 of 2010 have been filed by the same person who is one of the neighbours of respondents 3 and 4. In fact, she is one of the objectors whose resistance was sought to be averted by the second respondent. Her grievance is that shifting of the 11KV line, at the instance of respondents 3 and 4, if effected in such a manner by installing electric posts in the common pathway it would cause interminable and intolerable inconveniences and hardships to herself and other users of the pathway in question. 3. As already noticed, the questions regarding the feasibility of the shifting of the age-old existing 11 KV line in the properties of respondents 3 and 4 viz., Sri.Narayanan and Sri.Roy and the WP(C).No.18826/2010 & connected cases 3 sustainability of the objections raised by the common petitioner in W.P.(C) Nos.18826 and 24496 of 2010 were considered and decided as per Ext.P3. After considering the rival contentions the first respondent granted permission to shift the 11KV line from the existing route passing through the points ABC (marked in Ext.P2 sketch) to the new route PQR (marked in Ext.P2 sketch) through the private road. Admittedly, pursuant to Ext.P3 order the existing 11 KV line was shifted from the existing route viz. ABC and it was drawn through the new route viz. PQR through the pathway. For the purpose of such shifting three electric posts were installed. Admittedly, two of the electric posts were installed in the property of the third respondent Sri.Narayanan and the third one was installed on the side of the nearby PWD road. Thus, it is obvious that no electric posts were actually installed in the common pathway upon which the common petitioner in W.P.(C)Nos.18826 and 24496 of 2010, the third respondent as also the petitioner in W.P.(C)No.25745 of 2010 are having the right of way. As already noticed, after installing the said electric posts the line was shifted and drawn through the new route viz., PQR virtually over the pathway referred to in Ext.P3 order. 4. In this context it is to be noted that the consistent case of the respondents is that the petitioner has not actually raised any WP(C).No.18826/2010 & connected cases 4 objection before the second respondent at the relevant point of time and the second respondent filed the petition that led to Ext.P3 based only on the objections raised by the common petitioner in W.P.(C)Nos.18826 and 24496 of 2010 and to avert the same. A close scrutiny of the contentions in W.P.(C)No.25745 of 2010 would reveal that the petitioner did not have a case that he had raised any objection or obstruction against the said proposal. In fact, the averments in paragraphs 6 and 7 of the said writ petition would undoubtedly reveal the fact that the petitioner did not raise any objection against the said proposal. Therefore, the question is whether there was any other reason for sustaining his contentions. The petitioner in W.P.(C)No.25745 of 2010 assails Ext.P3 order on various grounds. Firstly, it is assailed on the ground that it was passed in total disregard to the principle of audi alteram partem. It is contended by the petitioner that after shifting the 11KV line from the existing route viz., ABC, while drawing the same through the new route PQR, there occurred aerial trespass into his property. That apart, it is his contention that the very same 11KV line about which respondents 3 and 4 made complaints and got shifted on the strength of Ext.P3 virtually passes over his property as well. However, the second respondent did not consider his request for shifting the same from his property. Indisputably, the said WP(C).No.18826/2010 & connected cases 5 issue was not at all a subject matter for consideration before the first respondent. Therefore, the petitioner cannot challenge Ext.P3 on the ground of non-consideration of his request for shifting the 11KV line that passes over his property as admittedly, he did not bring the said issue before the first respondent for consideration along with the issue involved in the petition filed before the first respondent that led to the passing of Ext.P3 order. Even if it was raised before the first respondent, ln my view, that could not have been a reason for deferring decision on the actual issues involved in the said petition or for deciding such issues against the interests of respondent Nos. 3 and 4. I will deal the said aspect a little later. 5. The question is whether Ext.P3 order passed by the first respondent is liable to be interfered with. The common petitioner in the other two writ petitions admitted the fact that she is not aggrieved by the present alignment and the locations of the electrical posts now, installed for the purpose of drawing through the points PQR as no electric posts were installed in the common pathway. In fact, the apprehension and concern of the said petitioner was only that the second respondent would instal electric posts in the common pathway pursuant to the proposal since the electric posts have already been installed for the purpose of WP(C).No.18826/2010 & connected cases 6 shifting the said 11 KV line pursuant to Ext.P3, in the property of the third respondent and on the side of the PWD road. The learned counsel appearing for the common petitioner in the said writ petitions submitted that the petitioner is not having any grievance with respect to the manner in which the electric posts are installed and the line was drawn pursuant to Ext.P3 order. The learned standing counsel for the Kerala State Electricity Board submitted that the line was already drawn in terms of Ext.P3 order and for that purpose already electric posts were installed and therefore, there is no question of installing the electric posts in the common pathway. In the said circumstances, the learned counsel for the petitioner in W.P.(C)Nos.18826 and 24496 of 2010 submitted that in view of the above submission made by the learned standing counsel and taking into account the fact that no electric posts were installed in the common pathway, the petitioner got no further grievance for redressal. Accordingly, W.P.(C)Nos.18826 and 24496 of 2010 are closed. 6. Coming back to W.P.(C)No.25745 of 2010, the grievance of the petitioner therein is that he was not afforded with an opportunity of being heard prior to the passing of Ext.P3 order. The further grievance of the petitioner is with respect to the non-consideration of his request for shifting of the 11 KV line existing in his property. With respect to the WP(C).No.18826/2010 & connected cases 7 said grievance, it is up to the petitioner to move the appropriate authority in accordance with the relevant provisions under the Indian Telegraph Act, 1885. In view of the fact that the requests of respondents 3 and 4 have been taken into consideration it will only be appropriate for the respondents to consider such request if made by the petitioner in accordance with law. In other words, the right of the petitioner to approach the authorities in accordance with law for getting the 11 KV line shifted from his property is reserved. I am of the view that as long as the existing 11KV line through the points ABC was shifted and drawn only through the points PQR, that too, after installing two electric posts in the property belonging to the third respondent and one in the public pathway and lines have been drawn only over a common pathway, there is no room for grievance to the petitioner in W.P.(C)No.25745 of 2010. The lie of the 11 KV line as revealed from Ext.P2 itself would reveal that once it is shifted from the property of the 3rd respondent, at his instance, it cannot exist in the property of the 4th respondent. In fact, the shifting of the said line is inevitable and automatic when once it is shifted from the property of the 3rd respondent on account of the lie of their respective properties as is obvious from Ext.P2 sketch. Therefore, according to me, the contention that the 4th respondent is not having any right over the common pathway WP(C).No.18826/2010 & connected cases 8 in question is inconsequential. The manner in which the 11 KV line was shifted and re-aligned would undoubtedly reveal that it would not cause any impediment or hindrance, whatsoever, to the user of the said pathway. Ext.R2 series and Ext.P7 would also reveal that no electric posts were installed in the pathway in question for shifting the 11 KV line from the properties of the 3rd and 4th respondents. That apart, they would not support the contention of the petitioner regarding aerial trespass in an objectionable manner. As already noticed, admittedly, the petitioner had not raised any objection against the proposal prior to the passing of Ext.P3. For all the foregoing reasons I find no merit in the contentions raised by the petitioner against Ext.P3. At any rate, no prejudice has been caused to the petitioner by the drawal of lines through the points PQR while shifting the 11 KV line from the existing points ABC. Ext.P3 order cannot be said to be perverse and it calls for no interference. Accordingly, W.P.(C)No.25745 of 2010 is dismissed subject to the above observations. Sd/- C.T.RAVIKUMAR Judge TKS // True copy // P.S. to Judge