IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 WP(C).No. 15605 of 2011(A) -------------------------------------- PETITIONER(S): -------------------------- ANNIE MATHEW, W/O.V.J. MATHEW, VATTAVAYALIL, JESUS ROAD, VADUTHALA, KOCHI - 682 023. BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE BY ADVS. SRI.TONY GEORGE KANNANTHANAM SRI.MATHEW K. SIMON RESPONDENT(S): ------------------------- 1. POWER GRID CORPORATION OF INDIA LTD., REPRESENTED BY THE CHIEF MANAGER, CHANDIINI, PLOT NO 190-B, MAVELIPURAM COLONY, KAKKANAD POST, KOCHI - 682 030. 2. MELOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MELLOOR.P.O VIA CHALAKUDY, PIN - 630 311. R1 BY SRI.K.DANDAPANI, SENIOR ADVOCATE R1 BY ADV. SRI.MILLU DANDAPANI R2 BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO. 15605/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REQUEST DTD. 12.1.2009 BY THE PETITIONER. P2:- COPY OF THE ORDER DTD. 12.1.2009 OF THE ADDITIONAL DISTRICT MAGISTRATE, THRISSUR. P3:- COPY OF THE REQUEST DTD. 25.2.2009 ISSUED BY THE PETITIONER. P4:- COPY OF THE REPRESENTATION DTD. 5.3.2009 BY THE PETITIONER TO THE DISTRICT COLLECTOR, TRICHUR. P5:- COPY OF THE JUDGMENT DTD. 30.7.2009 IN WPC. 19437/09 OF THIS HONOURABLE COURT. P6:- COPY OF THE LETTER DTD. 5.8.2009 FROM THE PETITIONER. P7:- COPY OF THE COMMUNICATION DTD. 4.12.2009 TO THE PETITIONER. P8:- COPY OF THE LETTER DTD. 11.12.2009 BY THE PETITIONER TO THE IST RESPONDENT. P9:- COPY OF THE NOTICE DTD. 1.12.2009 FROM THE IST RESPONDENT TO THE PETITIONER. P10:- COPY OF THE OFFER DTD. 23.1.2010 SUBMITTED BY THE PETITIONER. P11:- COPY OF THE JUDGMENT DTD. 7.7.2010 IN WPC. 6594/10 OF THE HONOURABLE COURT. P12:- COPY OF THE COMMUNICATION DTD. 25.5.2011 TO THE PETITIONER P13:- COPY OF THE COMMUNICATION FROM THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS R1(a):- LOCATION SKETCH INDICATING OPTIONS AND THE GOOGLE MAP COVERING THAT AREA, REFERRED TO IN THE COUNTER AFFIDAVIT. R1(b):- PHOTOGRAPHS RELATING TO TOWER NOS. 57,57/1 AND 58. TRUE COPY P.S. TO JUDGE tss C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C) No. 15605 of 2011-A -------------------------------------------- Dated this the 17th day of June, 2011 J U D G M E N T This is, in fact a third round litigation for the petitioner on the same subject matter. Manifold contentions have been raised to challenge Ext.P13. As per Ext.P13, the 2nd respondent Panchayat held that the plot offered by the petitioner for establishing a crematorium in place of the proposed plot for the said purpose, as unsuitable under the Kerala Panchayat Raj (Burial and Burning Grounds) Rules 1998 (hereinafter referred to as the 'Rules') and also to meet the requirements of 1st respondent. In the context of the rival contentions raised before me it is only proper and profitable to extract the decision in Ext.P13, to the extent it is relevant for the purpose of deciding the issues involved in this case and it reads thus:- “è}of] Bj] oLf|Ov]R£ nPo]W¥ wVowLj¾]jV AjOSpL^| osæL¾fOU RkLfO^j°¥¨V AyTWq|U DºL¨ORoÐf] jLsOU è}of] Bj] oLf|Ov]R£ nPo] RRWoLãU vLYVhLj°¥ y~}Wq]¨OvL¢ j]¡vLzo] sæL¾fOU, CSÕLuR¾ kµLp¾V vW òs¾V fRÐ -2- W.P.(C)15605/2011 wVowLjU j]¡Ú]¨OÐfLp]q]¨OU D\]fU IÐV kµLp¾]jV SmLÈ|RÕŸf]jLsOU kµLp¾V vW òs¾V fRÐ Y|LyV NW]oSŸLr]pU j]¡Ú] ¨OÐf]jV CT kµLp¾V WÚ]ã] RIW|WeVSbj f}qOoLj]\ÿO.” 2. The contention of the petitioner is that the decision in Ext.P13 is totally against the directions of this Court in Ext.P5 which were restated in Ext.P11. Ext.P13 would not reflect reasons as to why the land offered by the petitioner could not satisfy the requirements under the Rules for the establishment of a crematorium and therefore, there is no consideration of the said question, it is contended. That apart, going by the directions of this Court in Ext.P5 and also Ext.P11 in case the first plot offered by the petitioner could not meet the requirements under the rules and also the requirements of the first respondent, the said fact should have been notified to the petitioner to enable her to offer another plot for establishing a crematorium. Permission to draw the line through the alignment as allowed in Ext.P2 order dated 12.1.2009 of the Additional District Magistrate would inure in terms of Ext.P5 judgment only if the -3- W.P.(C)15605/2011 second plot offered is also found unsuitable to set up a crematorium, it is further contended. It is also contended that a scanning of Ext.P13 would reveal that the objections raised and found irrelevant by this Court as per Ext.P11 judgment were virtually reiterated in Ext.P13 for rejecting the offer made by the petitioner. 3. Separate counter affidavits have been filed by the 1st and 2nd respondents. To their counter affidavit a joint reply affidavit has been filed by the petitioner. In order to decide the issues involved in this writ petition it is worthy to look into the directions issued by this Court in Ext.P5 as well. As per Ext.P5 following directions were issued: “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 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 -4- W.P.(C)15605/2011 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 drawn 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 from the date of production of a copy of this judgment, so that the 1st respondent can draw the line without any further delay”. 4. Earlier, in purported compliance with the directions in Ext.P5 judgment a decision was taken by the 2nd respondent -5- W.P.(C)15605/2011 Panchayat as per resolution No. VIII dated 29.10.09. The said decision of the panchayat was communicated to the 1st respondent herein. On its receipt, the 1st respondent issued Ext.P7 communication dated 04.12.09 to the petitioner. Ext.P7 herein was challenged by the petitioner, as Ext.P12, by filing W.P.(C) 6594/2010. The prayer of the petitioner in the said writ petition was to quash Ext.12 and to direct the respondents to draw 400 KV Kochi-Thrissur transmission line through the corridor of the existing 220 KV transmission line and also to consider and take a decision on the option exercised by the petitioner as per Ext.P16. During the course of the argument in the said writ petition, the decision of the 2nd respondent Panchayat in resolution No. VIII dated 29.10.09 was made available and that was extracted in paragraph 5 of Ext.P11 judgment in W.P.(C)No.6594/2010. Evidently, Ext.P12 therein was set aside on finding that it was passed in violation of the directions in Ext.P9 judgment (Ext.P5 herein) and consequently the Panchayat and the 1st respondent were directed to conduct inspection to consider the suitability of the land offered by the petitioner in Ext. P16 in the light of the directions in Ext.P9 judgment. (Ext.P5). As -6- W.P.(C)15605/2011 already noticed hereinbefore, the contention of the petitioner is that the specific direction in Ext.P5 was to inspect the plot offered by the petitioner and to consider whether it suitable to meet the requirement under the Rules. In case of a negative nod it was to be notified to the petitioner to enable her to offer another suitable plot for establishing the crematorium. The petitioner in this writ petition contends that the said directions were not complied with. There is no finding in Ext.P13 that the plot offered by the petitioner was found unsuitable to meet the requirements under the Rules and also the first respondent. Per contra, the contention of the respondents is that the plot offered by the petitioner was inspected and found unsuitable for establishing a crematorium for the reasons assigned in Ext.P13 and therefore the directions in Ext.P5 and Ext.P11 judgments were substantially complied with. According to them, in the circumstances, there is no reason or justification to raise any further grievance in drawing lines and erecting the tower in the property as proposed. The 1st respondent in the counter affidavit specifically stated that on receipt of the copy of resolution No.VIII dated 29.10.09, the 1st respondent commenced construction in the -7- W.P.(C)15605/2011 property belonging to the petitioner after putting her on notice vide Ext.P7 and virtually completed the tower foundation. Further it is stated therein that tower Nos. 57 and 58 were already erected in such a manner to draw lines from there to tower No. 57(1), the number assigned to the tower to be constructed either in the property belonging to the petitioner or in the corridor of the existing 220 KV line. That apart, it is contended that if on account of a direction of this Court in this case re-alignment of the route and re-cast of location of tower Nos.57, 57/1 and 58 becomes necessary, the abandoning and re-cast of tower works would cost an estimated expenditure of Rs.1.5 crores. It is also stated therein that for the construction of transmission line from Kochi to Thrissur, as part of Kudankulam Power Evaacuuation Scheme interlinking through a 400 KV DC Line a total of 223 towers are to be erected and in fact, 222 towers were already erected and the only tower which remains to be erected is tower No.57/1. It is for erecting tower No.57/1 that they have already constructed the tower foundation in the property belonging to the petitioner on receipt of copy of resolution No.VIII dated 29.10.09. In short, the contention of the first respondent is -8- W.P.(C)15605/2011 that in view of the said further developments it will not be in the interest of justice, to interfere with the action on the part of the 1st respondent in erecting tower No. 57/1 on the foundation constructed in the property belonging to the petitioner. 5. A counter affidavit has been filed on behalf of the 2nd respondent Panchayat. The Panchayat has taken a stand that they have substantially complied with all the directions of this Court in Exts.P5 and P11 judgments. In paragraphs 8 and 9 therein contentions have been raised to substantiate the said contentions. Virtually they have reiterated the statement made in Ext.P13 in a bid to sustain and support it. Apart from that it is stated therein that re- structuring of alignment would cause huge loss to the Power Grid Corporation, the first respondent. In view of the aforementioned rival contentions, I have gone through Ext.P13 and also through all materials on record. The reasons for rejecting the offer of the petitioner as per Ext.P13 have already been extracted hereinbefore. The reasons for rejecting the offer of the petitioner pursuant to Ext.P5 as per resolution No.VIII dated 29.10.09 were extracted in Ext.P11 judgment. A conjoint reading of the reasons assigned in the -9- W.P.(C)15605/2011 resolution No.VIII dated 29.10.09 and in Ext.P13, for rejecting the offer made by the petitioner would reveal that substantially they are same. According to the Panchayat any decision to establish crematorium in a place other than the one presently available with the respondent Panchayat, that was purchased in the year 1982 would cause inconvenience to the public and that apart, it would not be possible for the Panchayat to obtain the requisite permit for establishing a crematorium in any other plot offered by the petitioner within her plantation having an extent of ten acres. Further, it is stated that the place purchased in 1982, the proposed place for establishing crematorium, is accepted by the public as the place for crematorium and therefore, they would therefore, approach any attempt for exchange of the said plot emotionally. In this context it is to be noted that the property was purchased by the Panchayat in the year 1982 and till the other day they could not have even made a proposal to set up a crematorium as the said property was the corridor of 220 KV line. Admittedly, no sanction was also hitherto obtained for setting up such a crematorium there. Evidently, the present proposal of the 2nd respondent is to set up a gas -10- W.P.(C)15605/2011 crematorium in the said property. It appears from the pleadings of the first and second respondents that none of them have, hitherto, addressed the question whether it would be possible to set up a gas crematorium in the proximity of a corridor of a 400 KV line. If the first respondent is erecting tower Nos. 57/1 in the proposed plot in the petitioners' property and drawing 400 KV line to it and from it necessarily its corridor would lie near to the property wherein the 2nd respondent is proposing to establish a gas crematorium. In such eventuality whether the second respondent would be able to set up crematorium in the present plot satisfying the requirements and conditions under the Rules? This aspect was not at all seriously taken into consideration by the first and second respondents. The other reasons given in Ext.P13 are nothing but reiteration of the reasons assigned in resolution No. VIII dated 29.10.09. In that context the observations made by this Court in Ext.P11 judgment assume relevance. In paragraph 12 of Ext.P11, it was held thus:- “In my view, these objections were not raised by the Panchayat at the time when the earlier writ petition was heard. Therefore it is not open to the Panchayat -11- W.P.(C)15605/2011 to raise these objections. That apart, if the plot offered by the petitioner satisfies the requirements of the Rules, the objections now pointed out by the Panchayat are irrelevant. Further the objections now raised are based only on the assumptions made by the Panchayat”. 6. Going by the second direction in Ext.P5 judgment, if the plot offered by the petitioner is found unsuitable for any reason, it was to be notified to the petitioner to enable her to offer another plot. Those rights were not done away with the Ext.P11 judgment and virtually, it was restated therein. There is no material to show that the first or second respondent has successfully challenged the said findings/observations in Exts.P5 and P11. When that be the case, taking into account the fact that the reasons assigned by the Panchayat for rejecting the offer made by the petitioner as per resolution No.VIII dated 29.10.09 when once found irrelevant by this Court those reasons cannot be assigned again for rejecting the offer made by the petitioner. In short, there cannot be any doubt that for considering the sustainability of Ext.P13 one has to look into the directions contained in paragraph 11(1) and 11(2) of Ext.P5 -12- W.P.(C)15605/2011 judgment. In fact, it is the non-compliance with the said directions that resulted in setting aside of the impugned order viz., Ext.P12 in W.P.(C) No.6594/2010. Ext. P12 therein was a communication carrying the proposal of the first respondent. In the said circumstances, if it is found that the directions in paragraph 11(1) and 11(2) are not complied with while passing Ext.P13, the inevitable consequence can only be setting aside of Ext.P13. 7. Before dealing with the said issue, I may deal with the contentions raised by the 1st respondent. As already noticed hereinbefore, the contention of the 1st respondent is that the construction of transmission line from Kochi to Thrissur as part of Kudankulan Power Evacuuation Scheme interlinking through a 400 KV DC line requires erection of 223 towers and out of the same already 222 towers were already erected and tower No. 57/1 is the sole tower that remains to be erected. Originally, it was proposed to erect in the property belonging to the Panchayat through which a 220 KV line was passing. For installing a tower in a property belonging to a local authority and for drawing transmission line through it the consent of the concerned local authority is required. -13- W.P.(C)15605/2011 Evidently, in the case on hand, the second respondent has not given such a consent. It was in the said circumstances, the 1st respondent was constrained to take steps to draw the line through the property belonging to the petitioner. According to the 1st respondent, the foundation of the tower No.57/1 was already made in the petitioner's property and that apart tower Nos. 57 and 58 were already erected in such a manner to get them connected to tower No.57/1 on its erection in the petitioner's property. In the said circumstances, abandoning and re-cast of tower works would incur an estimated expenditure of Rs.1.5 crores, it is contended by the first respondent. That apart, any further delay in completion of the project would have adverse impact in the power scenario of the power system of the state of Kerala. The learned senior counsel appearing for the 1st respondent placed reliance on a decision in Assyst International Pvt. Ltd. v. State of Kerala reported in 2009(4) KLT 116 to contend that this Court should decline to entertain this writ petition. In the said decision it was held as: ....“No criticism being levelled against the alignment and the design as may be attributable to mala fides, colourable exercise of power or other elements -14- W.P.(C)15605/2011 which tantamount to arbitrariness in State action, as are reckonable in judicial review, it needs to be remembered and recalled, without fail, that fixing alignments in relation to roads, rail tracks, metro tracks, including their inseparable adjuncts, are matters to be left to the widsom of those who are designated and duty bound to carry out the designing of such projects”...... Relying on the said decision it is contended that in the case on hand there is absolutely no allegation of malafide against the respondents or against their action and therefore in the light of the decision in Assyst International Pvt. Ltd. v. State of Kerala, this writ petition is liable to fail. At the first blush, the said contention appears to be attractive and acceptable. However, while considering the case on hand, the settled position of law that the parties to a lis are bound by the inter-party decision is to be borne in mind and that dissuades me from upholding the contention raised by the 1st respondent based on the aforesaid decision. Admittedly, the 1st respondent herein was also a party to Exts.P5 and P11 judgments. In fact, as per Ext.P11 judgment Ext.P12 issued by the first respondent was set aside upon finding non-compliance with the direction in Ext. P5 judgment. -15- W.P.(C)15605/2011 Admittedly, the first and second respondents have not raised any such contentions while defending the earlier writ petitions. 8. As per Ext.P5 specific directions have been issued by this Court in paragraph 11(1) and 11(2) for a joint inspection by the respondents herein of the land offered by the petitioner and on such inspection if the land offered by the petitioner was found unsustainable to meet the requirements of the Rules and also of the first respondent that fact was to be notified to the petitioner to enable her to offer another suitable plot of land. The 1st respondent cannot say that the 1st respondent is not bound by the said directions and when once the 2nd respondent intimated the 1st respondent of their decision based on the first inspection regarding the suitability of the land in question and that on such intimation it was open to the 1st respondent to draw line through the alignment in terms of Ext.P7 referred to in Ext.P5, viz., the order passed by the Additional District Magistrate, Thrissur. In fact, this Court passed Exts.P5 and P11 judgments after Ext.P7 order. Therefore, I cannot countenance with the said contention, especially in view of the decision in Ext.P11 judgment. After taking into account the rival contentions raised by -16- W.P.(C)15605/2011 the respondents herein in W.P.(C) No. 6594/10 as per Ext.P11, this court held:- “In my view, that justification is totally unacceptable because both the Panchayat and the first respondent were bound by the directions in Ext.P9 judgment and when alternate offer was made, they ought to have considered that offer which was not done”. It is thereafter that the impugned order therein was set aside and the Panchayat and the 1st respondent were directed to conduct fresh inspection in the light of the directions in Ext.P9 viz., Ext.P5 judgment. In view of the specific directions in Ext.P5 and Ext.P11 judgment, the first respondent cannot be heard to contend that taking into account the fact that out of the 223 towers required to be erected as part of Kudankulam Power Evacuuation Scheme interlinking through a 400 KV DC line, 222 towers were already erected and therefore, this writ petition requires no consideration at all. In fact, both the 1st and 2nd respondents are bound by Exts.P5 judgment as held by this Court in Ext. P11 judgment. In the said circumstances, the first and second respondents are not justified in making the -17- W.P.(C)15605/2011 submission that this Court, in view of the subsequent developments, shall not look into the contentions of the petitioner. In that view of the matter, the contention of the petitioner that Ext.P13 has been issued in total disregard to the directions in Ext.P5 and Ext.P11 judgments requires consideration on merits. 9. Now, I may revert to the issue as to whether Ext.P13 could be sustained or not. As already stated, for the purpose of considering the sustainability of Ext.P13 the question to be considered is whether the directions of this Court in paragraphs 11 (1) and 11(2) of Ext.P5 judgment were complied with or not. The said directions were already extracted and adverted to. A scanning of Ext.P13 bearing in mind the said directions would virtually reveal that there is nothing in Ext.P13 which would reveal that those directions at paragraphs 11(1) and 11(2) of Ext.P5 were strictly complied with by the first and second respondents. It is not specifically stated in Ext.P13 that on arriving at the conclusion that the first plot of land offered by the petitioner is unsuitable to meet the requirements under the Rules and that of the first respondent, it was duly notified to the petitioner and upon such notification the -18- W.P.(C)15605/2011 petitioner had offered another suitable plot of land and that on inspection that plot was also found unsuitable to meet such requirements. The learned counsel appearing for the 3rd respondent brought to my attention the usage of the word 'nPo]W¥' in Ext.P13 to contend that the plots of land offered by the petitioner were inspected and on such inspection they were found not suitable to meet the requirements under the Rules to establish a crematorium. A perusal of Ext.P5 directions in Exts. P5 and P11 judgments would reveal that the very purpose of conducting an inspection of the plot or plots offered by the petitioner should have been to see whether it/they would satisfy the requirements under the Rules for the purpose of establishing a crematorium as proposed by the 2nd respondent and also the requirements of the first respondent. When that be the purpose, I have no hesitation to hold that while stating that the plot or plots offered by the petitioner would not satisfy the requirements under the Rules, the 2nd respondent is bound to specifically state as to how and why the plot or plots of land offered by the