IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 17160 of 2011(T) -------------------------------------- PETITIONER(S): ---------------------- MUHAMMED HAJI, S/O.MAMMED HAJI, OLAKARAVEEDU, PUTHANAZHI, IRINGATTIRI P.O., MALAPPURAM. BY ADV. SRI.SAJU.S.A, SRI.T.SIVADASAN. RESPONDENT(S): -------------------------- 1. ADDITIONAL DISTRICT MAGISTRATE MALAPPURAM, OFFICE OF THE ADDITIONAL DISTRICT MAGISTRATE, CIVIL STATION, MALAPPURAM-676 505. 2. VELAYUDHAN, S/O.AYYAPPAN, AMBALAPPADATH HOUSE, PUTHANAZHI, IRINGATTIRI P.O., MALAPPURAM-676 523. 3. K. KARAPPAN, KARAVANNATHODI HOUSE, PUTHANAZHI, IRINGATTIRI P.O., MALAPPURAM-676 523. 4. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, PERINTHALMANNA, MALAPPURAM-676 505. 5. VILLAGE OFFICER, OFFICE OF THE VILLAGE OFFICER, KARUVARAKUNDU, MALAPPURAM-676 505. R1 & R5 BY GOVT. PLEADER SMT.ANITHA. R2 BY ADV. SRI.R.RAJESH KORMATH. R3 BY ADV. SRI.P.VENUGOPAL. R4 BY SRI.SAJEEVKUMAR K.GOPAL, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 17160 of 2011(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE 1ST RESPONDENT IN PROCEEDING NO.E-7623/11 DATED 25/05/2011. EXT.P2: COPY OF THE ADDITIONAL OBJECTION FILED BY THE PETITIONER BEFORE 1ST RESPONDENT IN PROCEEDING NO.E-7623/11 DATED 14/06/2011. EXT.P3: COPY OF THE REPORT FILED BY THE 5TH RESPONDENT BEFORE 1ST RESPONDENT IN PROCEEDING NO.E-7623/11 DATED 26/04/2011. EXT.P4: COPY OF THE ORDER BY 1ST RESPONDENT IN PROCEEDING NO.E-7623/11 DATED 14/06/2011. EXT.P5: COPY OF THE ROUGH SKETCH OF THE ALTERNATE ROUTE SUGGESTED BY THE PETITIONER. RESPONDENT'S EXHIBITS:- EXT.R2(a): COPY OF THE CERTIFICATE DATED 31/07/2010 ISSUED BY THE HEADMASTER, R.M. HIGH SCHOOL, MELATTUR TO THE ASSISTANT ENGINEER, MELATTUR ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD. EXT.R2(b): COPY OF THE APPLICATION DATED NIL FILED BY THE FOURTH RESPONDENT-ASSISTANT EXECUTIVE ENGINEER UNDER SECTION 16(1) OF THE INDIAN-TELEGRAPH ACT. BEFORE THE FIRST RESPONDENT-ADDITIONAL DISTRICT MAGISTRATE. EXT.R2(c): COPY OF THE REGISTERED ASSIGNMENT DEED DATED 28/11/1985 EXECUTED BY MAMMED HAJI, FATHER OF THE PETITIONER IN FAVOUR OF THE PETITIONER. EXT.R2(d): COPY OF THE ROUGH SKETCH SHOWING THE LIE OF THE PROPERTIES AND THE DIFFERENT ROUTES PROPOSED FOR DRAWING OF ELECTRIC LINE. EXT.R2(e): COPY OF THE GIFT DEED DATED 03/10/1990 OF SUB REGISTRAR'S OFFICE, MALATTUR. EXT.R4(a): COPY OF THE SKETCH ROUTE NO.1 PREPARED BY THE BOARD. EXT.R4(b): COPY OF THE SKETCH ROUTE NO.2 PREPARED BY THE BOARD. EXT.R4(c): COPY OF THE SKETCH ROUTE NO.3 PREPARED BY THE BOARD NOTICE SENT ON 20/01/2011 BY THE RESPONDENT TO THE PETITIONER. //TRUE COPY// P.S. TO JUDGE rs P.N. RAVINDRAN, J. ------------------------------- W.P (C) No.17160 of 2011 ------------------------------- Dated this the 13th day of October, 2011 J U D G M E N T Ext.P4 order passed by the Additional District Magistrate, Malappuram on 14.6.2011 permitting the fourth respondent herein to draw electricity line through the land belonging to the petitioner for the purpose of providing electricity connection to the residence of the second respondent is under challenge in this writ petition. The brief facts of the case are as follows:- 2. The second respondent applied to the Assistant Engineer for electricity connection to his residence. Electricity connection was granted under the O.P.T. Scheme of the Kerala State Electricity Board in view of the fact that second respondent's son undergoing studies in the 10th standard in R.M.High School, Melattur. Under the said scheme, the beneficiary need not pay any amount, if the total length of the overhead line and weather proof line does not exceed 235 meters. When the line was proposed to be drawn through the land belonging to the petitioner, he objected. The Assistant Executive Engineer thereupon moved the Additional District Magistrate by filing an application under section 16 of the Indian Telegraph Act. The Assistant Executive Engineer submitted three W.P.(C) No.17160 of 2011 2 proposals before the Additional District Magistrate. The first proposal was to draw an overhead line through the property of the petitioner for a length of 60 meters and thereafter to provide electricity connection by drawing weather proof line for a length of 30 meters, requiring the erection of 3 posts for the purpose. The second proposal was to draw the line through the land belonging to the petitioner and the third respondent for a length of 199 meters necessitating the erection of 6 posts. The third proposal was to draw it through a public pathway for a length of 385 meters necessitating the erection of 11 posts. The Additional District Magistrate heard the parties and directed an inspection to be conducted through the Village Officer of Karuvarakundu Village. The Village Officer submitted Ext.P3 report to the effect that all the three routes are feasible. He also reported that even if the line is drawn through the third alternate route, the pathway through which the line is drawn terminates in a parcel of land belonging to the petitioner. He also reported that the most feasible route is the first route proposed by the Assistant Executive Engineer. The Additional District Magistrate accepted the said report and permitted the Assistant Executive Engineer to draw the electricity line along the first route, viz., through the property of the petitioner. Hence this writ petition. W.P.(C) No.17160 of 2011 3 3. I heard Sri.Saju.S.A., learned counsel appearing for the petitioner, Smt.Anitha, learned Government Pleader appearing for respondents 1 and 5, Sri.P.Venugopal, learned counsel appearing for the third respondent, Sri.Rajesh.R.Komath, learned counsel appearing for the second respondent and Sri.Sajeev Kumar.K.Gopal, learned standing counsel appearing for the fourth respondent. I have also gone through the pleadings and the materials on record. During the course of arguments, the learned counsel appearing for the petitioner submitted that if the apprehension of the second respondent is that he will have to meet the expenses for obtaining electricity connection, if the line is drawn through the third alternate route, the petitioner is willing to meet the entire expenses in that regard. The learned standing counsel for the Board thereupon submitted that the third alternate proposal is to draw a line over a pathway and the pathway terminates in a parcel of land with respect to which there is a dispute between the petitioner and the second respondent's brother who has instituted a suit, O.S.No.172 of 2005 in the Court of Munsiff, Manjeri as regards the parcel of land in which the pathway terminates. The learned counsel for the second respondent submitted that there is a dispute about the ownership and possession of the land in which the pathway terminates and it may create complications later, if W.P.(C) No.17160 of 2011 4 ultimately it is found that the petitioner is not the owner of that parcel of land. In my opinion, that cannot be a reason to ignore the offer now made by the petitioner that he is ready to meet the expenses for drawing the electricity line, viz., the expenses for drawing weather proof and overhead line and also the expenses for erecting 11 posts. No doubt, the overhead line and the weather proof line will pass through the disputed property. If later the civil court finds that the petitioner is not the owner of the property, the civil court will have to enter a finding that either the second respondent or his brother is the owner. The line will then be passing through the land of the beneficiary himself or that of his brother. I accordingly dispose of the writ petition with the following directions. i) The fourth respondent shall within 10 days from the date of receipt of a copy of this judgment either from the petitioner or from the second respondent inform the petitioner in writing of the amount which he will have to deposit for drawing the line along the third alternate route as indicated in Ext.R4(c) sketch. ii) The petitioner shall within one week from the date of receipt of the intimation deposit the amount without protest. iii) The Board shall thereupon draw the line along the W.P.(C) No.17160 of 2011 5 route set out in Ext.R4(c) and provide electricity connection to the residence of the beneficiary. iv) It is clarified that this arrangement is without prejudice to the contentions of the parties to O.S.No.172 of 2005 and irrespective of the outcome of the said suit, the petitioner will not be entitled to claim refund of the amount remitted by him pursuant to this judgment. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No. 17160 of 2011 JUDGMENT Dated:- 13th October, 2011 --------------------------------------