IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 SA.No. 334 of 2000(F) ------------------------------ AS.26/1997 of III ADDL.SUB COURT, ERNAKULAM OS.619/1994 of PRINCIPAL.MUNSIFF COURT,ERNAKULAM .................... APPELLANT(S): PLAINTIFF/ APPELLANT ------------------------------------------------------------ *DAVIS THAYANKERY S/O.ITTIRA THAYANKERY HOUSE, CHUTTUPATTUKARA, EDAPPALLY NORTH VILLAGE.(DIED) *APPELLANTS 2 TO 4 IMPLEADED. 2. SOPHIA DAVIS, W/O.LATE DAVIS, THAYANKERY HOUSE HOLD AFFAIRS, AGED 44, RESIDING AT THAYANKERY HOUSE, CHUTTUPADUKARA, EDAPPALLY SOUTH VILLAGE, EDAPPALLY P.O. 3. KASHMIRA DAVIS, D/O. LATE T.I.DAVIS, STUDENT, AGED 15 YEARS, RESIDING AT THAYANKERY HOUSE, CHUTTUPADUKARA, EDAPPALLY SOUTH VILLAGE, EDAPPALLY P.O.( MINOR). 4. SITHARA DAVIS, D/O.LATE TSS.I.DAVIS, STUDENT AGED 13 YEARS, RESIDING AT THAYANKERY HOUSE, CHUTTUPADUKARA EDAPPALLY SOUTH VILLAGE, EDAPPALLY P.O. (MINOR). * (BOTH MINOR ARE REPRESENTED BY THEIR MOTHER WHO IN THE LAWFUL AND LEGAL GUARDIAN, THE IST NAMED). ADDL. APPELLATS 2 TO 4 ARE IMPLEADED AS LRS OF THE DECEASED SOLE APPELLANT VIDE ORDER DTD. 15.10.05 IN IA. 1897/05 IN SA. 334/2000. BY SRI.P.F.THOMAS, SENIOR ADVOCATE BY ADVS. SRI.SUNIL THOMAS SRI.JOJY SUNIL SRI.DILEEP VARGHESE SRISHIJU VARGHEESE tss S.A. NO.334/2000 RESPONDENT(S): /DEFENDANTS/RESPONDENTS ---------------------------------------------------------------------- 1. KALAMANDALAM VASUDEVAN, RESIDING AT MADATHUMPADY PARAMBU, THOPPIL, THRIKKAKARA KARA, VAZHAKKALA VILLAGE, BMC,P.O., 2. KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, THRIKKAKARA. R1 BY ADV. SRI.P.M.JOSHI R2 & R3 BY ADV. SRI.T.G.RAJENDRAN SC FOR K.S.E.B. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.334 of 2000 ------------------------------------- Dated this the 13th day of June 2011 Judgment The plaintiff is the appellant. He claims to be the owner of the plaint schedule property over which the first defendant has got kudikidappu right. The first defendant applied for electric connection. Defendants 2 and 3 prepared a plan and scheme to draw the electric line through the property of the plaintiff. The plaintiff complains that the line is being drawn in such a way so as to cause considerable damage to his property. According to him, it is in violation of Section 10(d) of the Telegraph Act, which stipulates that while drawing an electric line, as little damage as possible should be caused to the property. Without considering the proposal forwarded by the plaintiff in the proper perspective, the electric line is sought to be drawn by defendants 2 and 3. On the basis of these allegations, the suit was laid. SA 334/00 2 2. The defendants resisted the suit. They pointed out that they had considered various aspects for taking a decision as to the drawing of the electric line through the property of the plaintiff. The objections filed by the plaintiff were considered by the statutory authority and it was held that no damage will be caused to the property of the plaintiff by the drawing of the electric line and if at all any damage is caused, that will be compensated by the Board by adequate means. Pointing out that the suit is not maintainable, they prayed for dismissal of the suit. 3. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants examined DW1 and no documents were marked from their side. 4. On a consideration of the materials before it, the trial court found that there was no substance in the allegations of the plaintiff and that the statutory authority SA 334/00 3 has exercised the power in the proper manner, causing least injury to the property of the plaintiff. Accordingly, the suit was dismissed. 5. The plaintiff carried the matter in appeal as AS No.26/97 before the Sub Court, Ernakulam. The lower appellate court, after an independent evaluation of the evidence, concurred with the trial court. It is further held that there is a statutory right of appeal which the plaintiff could have availed of. On the basis of these findings, the appeal was also dismissed. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : 1.Are the courts below justified in assuming that the decision of the Executive Magistrate under Section 16(1) of the Telegraph Act read with Sec.51 of the Electricity Act is judicial beyond the interference of civil court while such decisions are only administrative in nature and civil court is entitled and justified in deciding SA 334/00 4 the dispute on the basis of pleadings and evidence which was failed to be done when the suit was dismissed and in appeal, the trial court's findings are confined. 2.Whether the courts below are justified in failing to notice the mandates contained in Section 10(d) of the Telegraph Act which provided that the exercise of powers under the above provision the authority shall do as little damage as possible to the property while the dispute raised and pleadings were to that effect while there was no consideration and the Magistrate only preferred the convenience of the first respondent and the feasibility of drawing the line which ought to have been interfered by the civil court. 3.Whether the courts below are justified in deciding the controversy in question in a hampazard and injudicious manner even SA 334/00 5 though the owner of the land, rights over his property was prejudiciously affected which would not have been allowed and could not be a kudikidappukaran when he applied for electric connection and he had no pathway beyond his ten cents purchased. 4.The courts below were not justified in accepting the order of the Additional District Magistrate wherein he considered the cost of drawing the lines through the proposed and alternate routs and accepted the favourable route of the first respondent rather than the injury to the owner of the land. 5.The lower courts failed to notice the pleadings and evidence in case and were carried away by irrelevant facts and circumstances. 7. The learned counsel for the appellant pointed out that both the courts below have omitted to notice Section 10(d) of the Telegraph Act, which stipulates that SA 334/00 6 the authority shall cause as little damage as possible to the property while exercising its powers under the said provision. According to the learned counsel, this statutory stipulation is violated in the case on hand. It is contended that the appellant had pointed out an alternate method but the authority refused to accept it on the ground that it is not economically viable. According to the appellant, that is not a criterion to hold against him since the present drawing of line affects his property considerably, reducing its market value. 8. Though the arguments may look very attractive, unfortunately, they are without any basis. Exts.A3 and A4 are the documents produced by the plaintiff. Ext.A4 is the order passed by the Additional District Magistrate. The statutory authority has considered the rival contentions. According to the Board, the alternate proposal is not feasible due to various reasons. One of the reasons is that to draw such a line, it will have to cross a pathway and canal and so also, it is not economically SA 334/00 7 viable. 9. The Additional District Magistrate, who is the statutory authority, is satisfied that the claim made by the Board was fully justified and correct and it was found that the claim made by the plaintiff was untenable. 10. It could not be said that Ext.A4 order is passed by the Additional District Magistrate without considering the materials. It is also to be noticed that the statutory authority has given convincing and cogent reasons as to why the proposal given by the appellant could not be accepted. As rightly noticed by the courts below, there are provisions for adequately compensating the loss sustained by him and that takes care of the situation. Moreover, the proposal put forward by the appellant is found to be uneconomical and unfeasible. There is nothing to show that the courts below have erred in any manner in coming to the conclusion that the plaintiff is not able to make out a case warranting interference with Ext.A4. The findings are based on evidence on record and SA 334/00 8 are pure questions of fact. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta SA 334/00 9