IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).No. 25880 of 2011(H) -------------------------- PETITIONER(S): ----------------------- KARIMBIL PRADEEPAN, S/O. RAMDAS, KARIMBIL HOUSE P.O., PALLIKKUNNU, KANNUR DISTRICT. BY ADV. SRI. K. C. SANTHOSHKUMAR SMT. K. K. CHANDRALEKHA RESPONDENT(S): --------------- 1. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SUB DIVISION, KANNUR DISTRICT - 670 001. 2. ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, PALLIKKUNNU, KANNUR DISTRICT - 670 004. 3. THE ADDITIONAL DISTRICT MAGISTRATE, KANNUR-670 001. 4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, ELECTRICITY DEPARTMENT, GOVERNMENT SECRETRIAT,THIRUVANANTHAPURAM-695 001. 5. P.P.SURESH KUMAR, S/O.BALACHANDRAN NAMBIAR, THANICHERY HOUSE, MAYYIL P.O., THALIPARAMBA, KANNUR DISTRICT-670 602. 6. ADDL.R6- V.V.MANOHARAN, S/O.NARAYANAN NAIR, MAINAKAM, P.O. PALLIKUNNU, KANNUR - 4. 7. ADDL.R7- N.V.SURENDRAN, S/O.K.V.GOPALAN NAIR, SREE SHYLAM, PO. PALLIKUNNU, KANNUR - 4. (ADDL.R6 & R7 ARE IMPLEADED AS PER ORDER DATED 09.11.2011 IN IA.17834/2011) WP(C).No. 25880 of 2011(H) R1 & R2 BY ADV. SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB R5 BY SMT. SHAMEENA SALAHUDHEEN R6 & R7 BY SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PN WP(C).No. 25880 of 2011(H) APPENDIX PETITIONER'S EXHIBITS EXT. P1 COPY OF THE SKETCH PLAN SHOWING THE LIE AND NATURE OF THE PROPERTY AND THE LOCATION OF THE EXISTING ELECTRIC POST FROM WHICH THE 5TH RESPONDENT IS DRAWING ELECTRIC LINE. EXT. P2 COPY OF THE INTIMATION DATED 25.4.2011 EXT. P3 COPY OF THE ORDER DATED 22.9.2011. EXT. P4 COPY OF THE PLAINT IN OS NO. 357/2007 ON THE FILE OF THE MUNSIFF'S COURT, KANNUR. EXT. P5 COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 1 & 2 IN OS NO. 357/2007 ON THE FILE OF THE MUNSIFF'S COURT, KANNUR. EXT. P6 COPY OF THE SKETCH PLAN. EXT. P7 TWO DIGITAL PHOTOGRAPHS. RESPONDENT'S EXHIBITS EXT. R1(a) COPY OF THE ACTUAL PLAN SHOWING THE POSITION OF THE EXISTING LINE AND THE PROPOSED. EXT. R1(b) COPY OF THE OBJECTION SUBMITTED BY SRI.NARAYANAN BEFORE THE 2ND RESPONDENT DATED 19.04.2011. EXT. R1(c) COPY OF THE FIR IN CRIME NO. 1344 OF 2011 OF KANNUR TOWN POLICE STATION DATED 27.09.2011. EXT. R5(a) COPY OF THE OBJECTION FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT. EXT. R5(b) COPY OF THE JUDGMENT IN OS 614/2006. EXT. R5(c) COPY OF THE ORDER IN I.A. 2960/2009. EXT. R5(d) COPY OF THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT. EXT. R5(e) COPY OF THE PHOTOGRAPHS SHOWING THE POST. 1,2 & 3 EXT. R5(f) COPY OF THE SKETCH PRODUCED BY THE 5TH RESPONDENT. WP(C).No. 25880 of 2011(H) EXT. R5(g) COPY OF THE REPORT OF THE TAHSILDAR. EXT. R5(h) COPY OF THE REPORT OF THE 1ST RESPONDENT. EXT. R5(i) COPY OF THE PETITION FILED BEFORE THE SI OF POLICE. EXT. R6(a) COPY OF THE DOCUMENT NO. 656/96 DATED 23.2.1996 EXECUTED BY THE WRIT PETITIONER'S FATHER IN FAVOUR OF THE 7TH RESPONDENT. EXT. R6(b) COPY OF THE DOCUMENT NO. 3910/1994 DATED 2.12.1994 IN RESPECT OF THE PROPERTY OWNED BY THE 6TH RESPONDENT. EXT. R6(c) COPY OF THE COMMISSION REPORT SUBMITTED BY ADVOCATE COMMISSIONER SEENA.P.V. IN O.S. NO. 282/2005 BEFORE THE ADDL. MUNSIFF COURT, KANNUR DATED 6.6.2005. EXT. R6(d) COPY OF THE SUPPLEMENTAL REPORT FILED BY ADVOCATE COMMISSIONER SEENA.P.V. IN O.S. NO. 282/2005 BEFORE THE ADDITIONAL MUNSIFF COURT, KANNUR DATED 5.7.2005. EXT. R6(e) COPY OF INTERIM ORDER DATED 28.10.2011 IN I.A. NO. 1861/2011 IN CRP NO. 359/2011. /TRUE COPY/ P. A. TO JUDGE PN P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.25880 of 2011 ----------------------------------------- Dated this the 19th day of November, 2011 JUDGMENT Ext.P3 order dated 22.9.2011 passed by the Additional District Magistrate, Kannur under section 16 of the Indian Telegraph Act, 1885, whereby he permitted the first respondent herein to draw electricity line from an existing electricity post, No.PE 18, situate adjacent to Ganesh Flour Mill belonging to the petitioner herein, to the residence of the beneficiary, namely the 5th respondent herein, is under challenge in this writ petition. The main contention raised by the petitioner is that the electricity post referred to in the operative portion of Ext.P3 order is a post standing in his land and not in a pathway as claimed by the beneficiary or additional respondents 6 and 7. It is contended that the pathway leading to the residences of respondents 5, 6 and 7 originates from the main road and passes through the southern and western side of Ganesh Flour Mill and not through its northern side as contended by respondents 5 to 7. Reliance is placed on Ext.P6 sketch in support of the said contention. W.P(C).No.25880 of 2011 -:2:- 2. It is not in dispute that respondents 5 and 6 had instituted O.S.No.282 of 2005 in the Court of the Munsiff of Kannur, claiming a right of way over the pathway passing through the northern side of Ganesh Flour Mill, that in that suit, the petitioner's wife and father are the defendants, that the said suit was decreed ex parte, that application filed by the defendants to set aside the ex parte decree and the application to condone the delay in filing that application were dismissed for default, that the defendants thereupon carried the matter in appeal by filing C.M.A.Nos.94 & 95 of 2007, that by judgment delivered on 28.6.2011 the Additional District Court, Thalassery, allowed the appeals, set aside the order dismissing the interlocutory applications for default and restored them to file and that respondents 5 and 6 have filed C.R.P.No.359 of 2011 in this Court and it is pending. In the said Civil Revision Petition this Court has passed an interim order staying the operation of the appellate judgment restoring the applications filed by the petitioner's wife and father, namely the defendants in the suit, to file. 3. It is evident from the pleadings and the materials on record that there is a dispute between the parties as regards the location and lie of the pathway through which respondents 5, 6 W.P(C).No.25880 of 2011 -:3:- and 7 and others claim access to their properties. The petitioner has also filed a suit O.S.No.614 of 2006 in relation to the very same pathway and the said suit was dismissed in view of the judgment in O.S.No.282 of 2005 holding that it is barred by res judicata. The petitioner has filed A.S.No.85 of 2009 in the Court of the District Judge, Thalassery and the said appeal is pending. It is also not in dispute that an interim order directing the parties to maintain the status quo was passed in the said appeal. From the pleadings and the materials on record it is evident that the petitioner does not dispute the existence of a pathway running north-south which originates from the main road on the east and passes through his property. The location and lie of the pathway is the only dispute raised in the suits. By the order impugned, the Additional District Magistrate has only permitted one more line to be drawn from the post PE 18 from which electricity lines have already been drawn to the residences of three other persons. It is from the very same post that electricity connection has been given to Ganesh Flour Mill also. Such being the situation, it cannot be said that the petitioner is in any way prejudiced if one more connection is given from the post PE 18. If the civil court holds that the lie of the pathway is not as claimed by the plaintiffs W.P(C).No.25880 of 2011 -:4:- in the suit, namely respondents 5 and 6 herein, and the lie of the pathway is as claimed by the petitioner, it will be open to the petitioner at that stage to take appropriate steps to have the electricity lines and the post shifted, if he so chooses. I therefore, find no reason to interfere with Ext.P3 order. The writ petition fails and is accordingly dismissed subject to the observation that in the event of the petitioner succeeding in the pending civil suits, it will be open to him to move the authorities for shifting of the electricity post PE 18 and also the lines drawn from the said post to the residences of the beneficiary and respondents 5 and 6. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.25880 of 2011 ---------------------------- JUDGMENT 19th November, 2011