IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 13496 of 2008(F) -------------------------- PETITIONER: ------------ 1. SHRI. K.K.KHALID, "THANEEM" PANNIYANNOORE, CHOKLI, THALASSERY TALUK REPRESENTED BY HIS SON AND POWER OF ATTORNEY K.NARSHID KHALID. 2. K.T.K. SULAIKHA, "THANEEM" PANNIYANNOORE, CHOKLI, THALASSERY TALUK REPRESENTED BY HER SON AND POWER OF ATTORNEY K.NARSHID KHALID. BY ADV. SRI.S.RAMESH BABU SRI.K.P.KAMALAKARA BABU RESPONDENTS: ------------- 1. THE POWER GRID CORPORATION OF INDIA LIMITED, SOUTHERN REGION TRANSMISSION SYSTEM-II KOZHIKODE CONSTRUCTION AREA OFFICE UGRAPURAM (PO), AREACODE, MALAPPURAM DIST. KERALA. 2. THE DISTRICT MAGISTRATE, WAYANAD COLLECTORATE, KALPETTA. BY ADV. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI FOR R1 GOVERNMENT PLEADER SRI.BEJOY CHANDRAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 13496 OF 2008 F ```````````````````````````````````````````````````` Dated this the 16th day of June, 2008 J U D G M E N T Petitioners call in question Ext.P12. They seek a direction not to proceed with the drawal of 400 KV Mysore- Kozhikode line over the properties of the petitioners. They also seek a direction not to cut and remove the trees in their property and not to cause any damage or loss to them. Their case in brief is as follows. The petitioners are in ownership and possession of 38 acres of land by name M/s.Trust Plantation in Wyanad district bordering Karnataka. The said plantation mainly consists of Arecanut trees and pepper cultivation. They received Ext.P1 notice from the 1st respondent proposing to cut trees in the petitioners’ property for drawing a 400 KV line. It was received by the petitioners at Muscat where the 1st petitioner is working. The petitioners addressed Ext.P2 letter to the 1st respondent pointing out that no consent for drawal of the line had been obtained. They received Ext.P3 reply wherein it is stated that the steps taken are legal and the petitioners were asked to desist from obstructing the WPC.13496/08 : 2 : execution of a Central Government approved project. Ext.P4 is a mahazar prepared indicating the trees and crops proposed to be cut. The petitioners approached this Court by filing WPC.15624/07. As directed by this Court the petitioner has obtained the expert opinion in the matter from a retired Chief Engineer, which is produced as Ext.P5. Ext.P6 has been obtained under the Right to Information Act and produced to indicate that there is no revision in the route, however, fine tuning to the alignment is done to meet technical requirements. Ext.P9 is a judgment of this Court wherein this Court issued certain directions. The relevant portion of Ext.P9 judgment is extracted below. “ 3. I am not proceeding to further adjudicate this matter on merits at this point of time, because, as of now the petitioners’ contentions are in the realm of objections to the line being drawn by a licensee, and therefore, it is the statutory requirement that the line cannot be drawn without such obstructions being removed in terms of the Telegraph and Electricity Act. However, having regard to the complexity of the questions raised, it is most appropriate that the Executive Magistrate, whom the respondent may apply following this judgment, hears the parties WPC.13496/08 : 3 : quite elaborately and takes further materials on record as may be placed and which may be required for consideration. It is also directed that the State Government shall also be represented in the proceedings and appropriate views of the State Government are also made available before the Executive Magistrate. The KSEB shall also participate in th proceedings. The Executive Magistrate, if necessary, would also require effective participation of the appropriate officials of the Forest Department and if needed, the appropriate authorities under the Central Government. The final decision shall be taken by the Executive Magistrate within a period of one month from the date of receipt of a copy of this judgment. It is clarified that all issues and contentions are left open.” It is thereafter, Ext.P12 order came to be passed. I heard the learned counsel for the petitioners, learned Government Pleader and the learned counsel appearing for the 1st respondent. Contentions of petitioner: 2. The learned counsel for the petitioners would submit that the proposed 400 KV line has a route length of 210 Km whereas the existing 220 KV line from Areacode to Mysore is WPC.13496/08 : 4 : having only 160 Km. It is, therefore, contended that there is an increase of 50 Km. This increase of 50 Km is as a result of the deviation taken. It is also the case of the petitioners that the deviation is taken to help a Member of Parliament who has some plantation. In the result of the deviation, the additional expenditure will be 85 crores. On account of the deviation, not only the Government expenditure is escalated but the line is drawn through the properties of persons like the petitioners causing damage to their properties. All these are avoidable if only the 1st respondent made use of the existing corridor. It is submitted that an alternate route was specifically suggested by the petitioners. The alternate proposal involves upgradation of 220 KV. It is also the case of the petitioners that at any rate 400 KV should have been constructed along the corridor. According to the learned counsel for the petitioners, the Forest Conservation Act only injuncts the use of forest land for non-forest purpose except after obtaining sanction from the Central Government. There is also an existing 220 KV which itself is passing through the forest area and there is an existing corridor. It is the case of the petitioners that it is WPC.13496/08 : 5 : inconceivable as to why the corridor could not be employed and sanction sought from the Central Government would have been obtained. The learned counsel for the petitioners contends that this Court had disposed of the earlier writ petition in Ext.P9 judgment by issuing certain specific directions. This Court had directed the District Magistrate to obtain the views of the State and Central Government officials. Accordingly, Ext.P10 preliminary objection was raised that a hearing should not be conducted and a decision taken in the matter before obtaining the views as directed in Ext.P9 judgment. It was without looking into the preliminary objection and without also accepting the request of the petitioners to examine three witnesses, the Magistrate has after a hearing held on 2.1.2008 and waiting for nearly three months proceeded to pass Ext.P12 order and immediately thereafter it is complained that the trees standing in the petitioners' property were cut. It is contended that a perusal of Ext.P12 would show that the Magistrate has relied upon the views of the Range Officer who was not competent to represent the views of the Government in a matter which involves the delineation of the policy. It is stated that WPC.13496/08 : 6 : the view of the Power Secretary is referred to in Ext.P12 eventhough the Power Secretary had never appeared before him. It is also contended that after 2.1.2008 when the hearing took place, the Magistrate, without bringing to the notice of the petitioners the materials which he had obtained, proceeded to pass an order as Ext.P12. There was no opportunity afforded to the petitioners after 2.1.2008 with reference to the materials which came before him. It is further pointed out that the petitioner had obtained an expert opinion which is already referred and the expert opinion which was produced before the Magistrate does not form the subject matter of his discussion. It is also contended that in a similar situation scenario from Tirunelveli to Edamon and Cochin to Thrissur, the 1st respondent had employed upgradation and there is no reason for not following the same method in this case and it would have only led to a lowering of the cost of the project. 3. Per contra, the learned Government Pleader, on instructions, submitted that the directions contained in Ext.P9 are complied with. He pointed out that the view taken by the Range WPC.13496/08 : 7 : Officer was by representing the District Forest Officer and this Court had only in Ext.P9 directed to hear the officials of the Forest department. It is pointed out that this Court only directed in Ext.P9 judgment to elicit the views of certain agencies. The learned Government Pleader also produced before me the communication addressed by the Secretary, Ministry of Power, wherein the State of Kerala is of the view that the alternate route suggested by the petitioner is practically impossible. 4. The learned counsel appearing for the 1st respondent has filed a counter affidavit to which the petitioners have filed a reply affidavit. It is pointed out in the counter affidavit that 95% of the work has been completed. As far as the petitioners are concerned, only two towers are to be located in the petitioners' property. It is further contended that in the facts of the case, it may not be possible to do the upgradation of the existing 220 KV lines, for two reasons. Two districts, namely Kozhikode and Malabar, will plunged into darkness if upgradation work is done over the 220 line. It is further submitted that the work may not be feasible as the existing 220 line passed through forests. After WPC.13496/08 : 8 : the enacting of the Forest Conservation Act, 1980 no non-forest activity is permissible except after sanction from the Central Government. It is the view of the authorities that sanction will not be obtained for carrying out the work. He also referred to technical snags in an attempt of upgradation of 220 KV line. He submits that what is involved is cutting of trees. He also submitted that the petitioners were issued notice and they received compensation for trees cut. 5. There is a proposed route by the 1st respondent. There is a deviation. The deviation is the result of the mandate of the Forest Conservation Act as drawing a line involving cutting of trees, involves a non-forest operation and requires sanction from the Central Government. After going through Ext.P12, it may not be open to the petitioners to call in question Ext.P12 order on the ground that the proposal for upgradation should have been accepted. It cannot be said that the Magistrate took a view which was wholly perverse. There were materials before him with reference to which he justifiably came to the conclusion that the alternate proposal suggested by the petitioner may not be feasible. WPC.13496/08 : 9 : If two views are possible, it is not legal to interfere with the decision under Article 226 of the Constitution. A very substantial portion of the work stands completed. I also notice from the order that it is not a case of the petitioners that the drawal of the line would cause any damage to any building of the petitioners. Therefore, the damage is to the trees. The trees have already been cut. The petitioners are entitled to proper compensation. As far as the plea of malafides is concerned, I am of the view that on the pleadings as they stand and the materials produced, the petitioners have failed to make out a case of malafides. There was admittedly a hearing on 2.1.208. No doubt, the petitioners made a request for examination of three witnesses. I do not think that on the facts of this case, even assuming that proceedings under section 16(1) permit taking of evidence the denial of such a request has resulted in injustice which is to be undone by this Court. Admittedly the authorities in the State are one in their view that the proposal of the 1st respondent is one which is to be implemented and the alternate proposal may not be feasible. The authority has apparently paid deference to the expert opinion. WPC.13496/08 : 10 : Ext.P9 judgment only directed effective participation of appropriate officers of the various departments and if needed, the appropriate authorities under the Central Government. Therefore, if the Range Officer represented the DFO and offered the view that alternate proposal is not feasible and the District Magistrate accepted such a view, I do not think that it can be dubbed as illegal and arbitrary. Likewise, this Court directs only to obtain the views of the Government. Apparently, the views of the State Government came to be obtained. 6. In this case, I cannot overlook the fact that this is a project which reflects high public interest. At any rate, in the face of the competing claims, if the District Magistrate was inclined in favour of a particular view which is a possible view, it is not for this Court to scuttle that opinion and interfere with such proposal. Having regard to the totality of facts, I am constrained to repel the impassionate plea by the learned counsel for the petitioners and accordingly, this writ petition is dismissed. Sd/- (K.M.JOSEPH, JUDGE) aks /TRUE COPY/ P.A.TO JUDGE