IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 5276 of 2010(H) --------------------------------------- PETITIONER(S): ------------------------ N.M.HASSANKUTTY HAJI, S/O.KUNHEEN, PALAIKKATHODI HOUSE, CHONARIKADAVU,MOONNIYOOR. BY ADVS. SRI.V.B.UNNIRAJ, SMT.A.S.BEENU. RESPONDENT(S): --------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY,THIRUVANANTHAPURAM. 2. THE ASST.EXECUTIVE ENGINEER,TRANSMISSION SUB DIVISION, KSEB, EDARIKODE POST, MALAPPURAM DISTRICT. 3. THE DISTRICT COLLECTOR, MALAPPURAM. 4. THE ADDISIONAL DISTRICT MAGISTRATE,MALAPPURAM. 5. K.MUSTAFA, S/O.ALAI HAJI,KALANGADAN HOUSE, MUNNIYUR, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 6. ABDU RAHIMANKUTTY, S/O.MARAKKAR, RESIDING AT PULIKKAL HOUSE, MUTTICHIRA, MUNNIYUR, TIRURANGADI TALUK,MALAPPURAM DISTRICT. 7. MANAMEL HYDER, S/O.AHAMMED, RESIDING AT CHEMPATTI PARAMBU HOUSE, MUTTICHIRA, MUNNIYUR, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 8. BHARATHI, W/O.KAITHOTTU KALARIKKAL CHINNANKURUP, RESIDING AT KADENGAL HOUSE, MUTTICHIRA, MUNNIYUR, TIRURANGADI TALUK,MALAPPURAM DISTRICT. R1 & R2 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R3 & R4 BY GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL R5 TO R8 BY ADVS. SRI.K.T.SHYAMKUMAR, SRI.HARISH R. MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010 ALONG WITH WPC NO. 7530 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5276/2010 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT DTD. 10/01/2007 IN WPC.NO.1124 OF 2007. P2: COPY OF THE ORDER DTD. 30/03/2009. P3: COPY OF THE JUDGMENT IN WPC.13032 OF 2009 DTD. 30/04/2009. P4: COPY OF THE ORDER OF THE 3RD RESPONDENT BEARING NO.E3-21751 OF 2009 DTD. 24/07/2009. P5: COPY OF THE ORDER DTD. 23/07/2009. P6: COPY OF THE JUDGMENT IN WPC.NO.24686 OF 2009 DTD. 02/11/2009. P7: COPY OF THE ORDER DTD. 06/02/2010. P8: COPY OF THE SKETCH PREPARED BY THE ASSISTANT ENGINEER. P9(A): COPY OF THE MINUTES OF THE SUB COMMITTEE. P9: COPY OF THE COVERING LETTER ALONG WITH THE MINUTES OF THE SUB COMMITTEE. P10: COPY OF THE COVERING LETTER. P10(A):COPY OF THE SKETCH. P10(B):COPY OF THE SKETCH. RESPONDENT'S EXHIBITS: R2(A): A ROUGH SKETCH SHOWING THE PROPOSED LINE ROUTE. R3(A): COPY OF THE SKETCH SHOWING ORIGINAL ROUTE PROPOSED BY THE KSEB AND THE 2ND PROPOSAL SUBMITTED BY THE SUB COMMITTEE AND THE THIRD ALTERNATIVE ROUTE PROPOSED BY THIS RESPONDENT. R6(A): COPY OF THE MALAYALA MANORAMA DAILY NEWS PAPER DTD. 16/01/2010 (PAGE NO.2). R6(B): COPY OF THE COUNTER AFFIDAVIT FILED BY THE 5TH RESPONDENT IN WPC.NO.24686/2009. /TRUE COPY/ P.A.TO JUDGE Kss P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) Nos.5276/2010 & 7530/2010 ---------------------------- Dated this the 26th day of May, 2010. J U D G M E N T This is the third or fourth round of litigation with regard to the drawing of electric line through the property in question. 2. The issue pertains to the drawing of 110KV electric line from Olavattoor to Parappanangadi. When the preliminary survey was conducted without notice, it led to objections; pursuant to which, the concerned Additional District Magistrate chose to hear the parties concerned including 73 persons and passed an order holding that the route proposed by the KSEB was more feasible one. Aggrieved by the above order, W.P(C) No.1124 of 2007 was filed before this Court by some of the aggrieved persons, which led to Ext.P1 judgment, whereby the statutory authority was directed to consider the matter afresh and to pass appropriate orders as to the feasibility and other relevant aspects, taking note of the objections raised by all the parties concerned. 3. After considering the facts and figures, the District Magistrate passed Ext.P2 order dated 30.3.2009 observing that a W.P(C) Nos.5276/2010 & 7530/2010 2 ‘Sub Committee’ has already been constituted to consider the objections raised from the part of the general public and the said Sub Committee consisting of the Tahsildar Tirurangadi, Assistant Executive Engineer, KSEB, Village Officer, Moonniyur, Panchayth President and Vice President of the Moonniyoor Grama Panchayath was directed to examine all possible routes and to submit a report. Pursuant to further steps, the Board was directed to draw the line along the route suggested by the Sub Committee. 4. The above order was challenged by the fifth respondent (in W.P(C) No.5276 of 2010) by filing W.P(C) No.13032 of 2009. After taking note of the rival contentions, Ext.P3 judgment was passed by this Court directing the concerned Magistrate to reconsider the issue and finalise the proceedings. Based on Ext.P3 judgment, the District Magistrate re-considered the matter and after taking note of the entire materials on record, Ext.P2 order passed earlier was confirmed and Ext.P4 order was issued upholding the alternate route suggested by the ‘Sub Committee’. This was again challenged by the fifth respondent by filing W.P(C) No.24686 of 2009. The main dispute was that, there was no decision or report W.P(C) Nos.5276/2010 & 7530/2010 3 of the Sub Committee and that the proceedings were finalised referring to the non-existing report of the Sub Committee which was not correct or proper. The nature of contentions raised as above was specifically adverted to by this Court and Ext.P6 judgment was passed on 2.11.2009 observing that the decision of the Sub Committee confirmed by the District Magistrate was not available in writing. The Convener of the Committee stated that the concerned sketch was not proper or in accordance with the suggestion of the Committee. In the above circumstances, it was held by this Court that, in so far as the impugned order was stated to be passed based on the decision of the Sub Committee and in so far as the decision of the Sub Committee was not available in writing, the impugned order could not be sustained and accordingly, the District Magistrate was directed to re-consider the matter in the best way possible, either by directing the Sub Committee to give a decision in writing or ascertaining the most feasible route, the best way the District Magistrate can do. 5. Pursuant to Ext.P6 verdict, the matter was reconsidered by the District Magistrate, who issued Ext.P7 order holding that the W.P(C) Nos.5276/2010 & 7530/2010 4 ‘first route’ proposed by the KSEB was the best one and accordingly, the Board was directed to draw the line through the route as proposed by the KSEB in their report submitted on 20.1.2010. The correctness and sustainability of the said order is under challenge in both these Writ Petitions. 6. The authorities of the Board as well as the fifth respondent have filed counter affidavits seeking to sustain Ext.P7. Similarly, the third respondent has also filed counter affidavit dated 18.2.2010, simultaneously producing a copy of the sketch marked as R3(A). It is revealed from the counter affidavit filed by the third respondent/District Magistrate that, after Ext.P6, the matter was considered in detail and Ext.P7 order was passed on the basis of the report dated 20.1.2010 submitted by the second respondent, Assistant Engineer. It is also stated that, besides the original route proposed by the KSEB, and the alternate route suggested by the Sub Committee, a third alternate route was also proposed by the third respondent/District Magistrate himself, which has been clearly shown in Ext.R3(a). However, the fact remains that nothing has been mentioned in Ext.P7 order as to the third alternate route W.P(C) Nos.5276/2010 & 7530/2010 5 proposed by the third respondent himself, as given in Ext.P3(a). 7. Yet another aspect to be considered is that that the impugned orders ie. Exts.P2, P4 and P7 have been passed by the concerned District Magistrates, who were holding the office at that point of time and that all of them were IAS officers. It was after applying the mind earlier, that Exts.P2 and P4 order were passed, whereby the proposal stated as preferred by the Board was held as not feasible and that the alternate route suggested by the Sub Committee was found as correct and acceptable; thus virtually in support of the case of the petitioners herein. However, things took a different turn pursuant to Ext.P6 judgment, whereby the feasibility of the route has been declared as something else, because of the report submitted by the second respondent on ‘20.1.2010’. 8. It is stated by the learned standing counsel, with reference to the counter affidavit filed, that the report was submitted by the second respondent on the basis of the letter dated 19.1.2010 written by the third respondent, so as to suggest more feasible route, more convenient to the resident people and less expensive to the Government. It is also conceded that, after receipt W.P(C) Nos.5276/2010 & 7530/2010 6 of the said letter dated 19.1.2010, no further inspection was conducted by the second respondent, who however chose to submit a report on the very next day, based on the available materials on record. The materials available on record however could not be taken to submit a report contrary to the version already submitted, which led to Ext.P2 order passed by the District Magistrate earlier, which was confirmed in Ext.P4 passed by another District Magistrate, who was holding the office, on re-consideration. 9. The description of the facts and figures clearly reveals that Ext.P7 order has been passed by the third respondent without proper application of mind, more so when, it is without any regard to the ‘ third alternate route ’ stated as submitted/proposed by the District Magistrate himself as stated in para 4 of the counter affidavit and clearly shown in Ext.R3(a) sketch. Nothing is discernible from Ext.P7 order as to the feasibility aspect of this route, nor is there anything in this regard, in the report dated 20.1.2010 stated as submitted by the second respondent in response to the letter dated 19.1.2010 issued by the third respondent. W.P(C) Nos.5276/2010 & 7530/2010 7 10. There is yet another contention for the petitioners in these Writ Petitions that Ext.P6 judgment was caused to be passed on the basis of a distorted version as to the actual facts and figures; particularly alleging that there was no decision/report in writing by the Sub Committee. Reference is made to Ext.P9(a) produced by the petitioner along with I.A No.3881 of 2010 in W.P(C) No.5276 of 2010. It is stated that Ext.P9(a) has been obtained by filing necessary application under the Right to Information Act, which reveals that the Sub Committee convened on 28.2.2008 in the office of the Munniyoor Grama Panchayath had taken a decision with regard to the route through which the line had to be drawn and the sketch approved in this regard was decided to be forwarded to the District Collector. The said proceeding also bears signature of the members who were present in the meeting, which includes the third petitioner in W.P(C) No.7530 of 2010, who was the ‘second signatory’ thereto. 11. The learned counsel for the petitioner submits that, had this document been available earlier or had the petitioner in W.P.(C) No.24686 of 2009 revealed the correct position before this Hon'ble W.P(C) Nos.5276/2010 & 7530/2010 8 Court, when the said Writ Petition was considered, Ext.P6 judgment may not have been there and no interference would have been made by this Court. In any view of the matter since the specific direction given in the said verdict, directing the District Magistrate was to finalise the matter after obtaining the decision of the Sub Committee, the proper course for the said respondent was to have ascertained whether any such decision was available in writing and to have acted accordingly. 12. Considering the facts and circumstances, this Court finds that the reasoning given by the third respondent in Ext.P7 is not correct or acceptable. Accordingly, Ext.P7 is set aside and the third respondent is directed to reconsider the matter after giving an opportunity of hearing to all the parties concerned including the petitioners in both the Writ Petitions, Tahsildar Tirurangadi, Assistant Executive Engineer, KSEB, Village Officer, President and Vice President of the Moonniyoor Grama Panchayath and pass appropriate orders as expeditiously as possible, at any rate within one month from the date of the receipt of a copy of this judgment. Such order shall be passed with reference to the entire materials on W.P(C) Nos.5276/2010 & 7530/2010 9 record including Ext.P9(a) and the third respondent is also free to conduct further spot inspection, if so necessitated. Both the Writ Petitions are disposed of. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy// P.A to Judge