IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 6143 of 2011(P) ---------------------------------- PETITIONER(S): ----------------------- DIVAKARAN,S/O.KRISHNAN,AGED 56 YEARS, ANEESH BHAVAN, IVERKALA PADINJATTINKARA VADAKKU MURI, KANNATHUR VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT. BY ADVS. SRI.R.SURAJ KUMAR SRI.N.AJITH RESPONDENT(S): ------------------------ 1. THE ADDITIONAL DISTRICT MAGISTRATE, KOLLAM - 691 001. 2. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM PO, THIRUVANANTHAPURAM- 695 001, REP.BY ITS SECRETARY. 3. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SUB DIVISION, EZHAMKULAM, PATHANAMTHITTA DISTRICT - 691 010. 4. PONNAMMA,W/O.SURENDRAN,VISHNU BHAVAN, IVERKALA PADINJATTINKARA VADAKKU MURI, KANNATHUR VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT - 691 001. 5. JAGADAMMA,W/O.DIVAKARAN,AGED 53 YEARS, ANEESH BHAVAN, IVERKALA PADINJATTINKARA VADAKKU MURI, KANNATHUR VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT-691 001. R1 BY GOVT.PLEADER SRI. MANOJ.P.KUNJACHAN AND R2, R3 BY ADVS. SRI.K.M.SATHYANATHA MENON,SC,KSEB SRI. P.P.THAJUDEEN, SC, K.S.E.B & R4 BY ADV. SRI.B.MOHANLAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG WP(C).No. 6143 of 2011(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - COPY OF THE SALE DEED NO.1156/197 DATED 10.04.1974. EXT.P2 - A ROUGH SKETCH SHOWING LIE OF THE PROPERTIES. EXT.P3 - COPY OF THE PLAINT IN PLAINT IN O.S.2/2009 DATED 01.01.2009. EXT.P4 - COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 16.02.2009. EXT.P5 - COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER DATED 18.05.2009. EXT.P6 - COPY OF THE JUDGEMENT DATED 09.06.2009 IN W.P. ( C ) NO.14841/2009 ON THE FILE OF THE HON'BLE COURT. EXT.P7 - COPY OF THE REPORT PREPARED BY THE VILLAGE OFFICER AND SKETCH DATED NIL. RESPONDENT'S EXHIBITS: EXT.R 2 (a) - COPY OF THE SKETCH IN RESPECT OF THE PROPOSED ROUTE. EXT.R 4 (a) - COPY OF THE ORDER NO.K.DIS.-61683/07/M11 DATED 18.02.2011 ISSUED BY THE 1ST RESPONDENT. /TRUE COPY/ P.A.TO JUDGE DG P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.6143 of 2011 ----------------------------------------- Dated this the 16th day of November, 2011 JUDGMENT The petitioner is the owner of a parcel of land approximately 7.40 ares in extent, situate in R.S.No.96/5 of Kunnathur Village, Kunnathur Taluk, Kollam District. The fourth respondent owns land to the north of the land belonging to the petitioner. In between lies the properties of Smt.Sarasamma and the petitioner himself. The fourth respondent applied for electricity connection to her residence. The petitioner and the fifth respondent thereupon raised objections to the line being drawn through their lands. Apprehending that ignoring their objections, the Kerala State Electricity Board will draw an electricity line through their lands, they filed W.P(C)No.14841 of 2009 in this Court. By Ext.P6 judgment delivered on 9.6.2009 a learned single Judge of this Court directed the Additional District Magistrate, Kollam, to pass orders on the application made by the Assistant Executive Engineer, the third respondent herein, under the Indian Telegraph Act, 1885, with notice to the parties expeditiously and in any event within eight weeks from the date of production of a copy of the judgment. This Court also directed that until then, further W.P(C).No.6143 of 2011 -:2:- proceedings for drawing the line through any portion of the petitioners' properties shall be kept in abeyance. 2. Pursuant thereto, the first respondent issued Ext.P5 notice and the petitioner and the 5th respondent appeared before the first respondent on 23.5.2011. It is stated that though the petitioner produced a copy of Ext.P4 report submitted by the Advocate Commissioner appointed in a suit filed by him and the fifth respondent and pointed out that the line can be drawn through an alternate route, the first respondent did not accept the said suggestion and instead permitted the line to be drawn through his property. The petitioner contends that the proposal to draw the electricity line through his lands without obtaining his consent is illegal and that the line can be drawn to the residence of the fourth respondent through another route from the western side of the fourth respondent's property. It is also contended that the petitioner and the fifth respondent were not heard by the first respondent and therefore, for that reason also the third respondent is liable to be interdicted from drawing the electricity line through his lands. On these contentions the petitioner has filed this writ petition seeking the following reliefs:- (i) To declare that drawing of the electric line to the property of the petitioner is illegal and without any W.P(C).No.6143 of 2011 -:3:- authority. (ii) Issue a writ of mandamus or any other writ, order or direction, to the 3rd respondent to refrain from drawing electric line through the property of the petitioner. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to issue notice and hear the petitioner before passing any orders in compliance with Ext.P6 judgment of this Hon'ble Court. 3. Respondents 2 and 3 have filed a counter affidavit dated 6.6.2011 wherein it is stated that the line will be drawn only after the first respondent takes a decision in the matter. The fourth respondent has filed a counter affidavit dated 20.3.2011 and produced along with it as Ext.R4(a) the order passed by the Additional District Magistrate, Kollam dated 18.2.2011. Relying on the said order it is contended that the proposed route is the most feasible route. It is also contended that the proposal is to draw the line through a pathway, that there is no need to cut and remove any tree as alleged and therefore, the reliefs prayed for cannot be granted. Pursuant to the order passed by this Court on 25.2.2011 the learned standing counsel appearing for the Kerala State Electricity Board has produced along with I.A.No.17965 of 2011 a copy of the sketch prepared by the third respondent. W.P(C).No.6143 of 2011 -:4:- 4. I heard Sri.R.Suraj Kumar, learned counsel appearing for the petitioner, Sri.Manoj P.Kunjachan, learned Government Pleader appearing for the first respondent, Sri.K.M.Sathyanatha Menon, learned standing counsel appearing for respondents 2 and 3 and Sri.B.Mohanlal, learned counsel appearing for the fourth respondent. Though the fifth respondent has been served, she has not chosen to enter appearance. Sri.Suraj Kumar, learned counsel for the petitioner, contended relying on Ext.P2 sketch and the sketch accompanying Ext.P5 report submitted by the Advocate Commissioner in the suit instituted by him and the 5th respondent that the line can be drawn through an alternate route. Relying on Ext.P7 report submitted by the Village Officer, which is produced along with the reply affidavit dated 8.6.2011, it is contended that the most feasible route is to draw the line through the northern side of the land belonging to the 4th respondent. Per contra, the learned counsel appearing for respondents 2 and 3 contended with reference to Ext.R2(a) sketch that the proposal mooted by the Kerala State Electricity Board and approved by the Additional District Magistrate is to draw the line through the route ABC marked in Ext.R2(a) sketch along a pathway leading to the residence of the beneficiary, namely the fourth respondent, that there is already a post existing away from the north-eastern W.P(C).No.6143 of 2011 -:5:- corner of the petitioner's holding and from that post the electricity line can be drawn by erecting another post near the residence of the beneficiary herself and therefore, there is no merit in the contention of the petitioner that he will be seriously prejudiced if the line is drawn along the route approved by the Additional District Magistrate. The learned counsel also contended that the petitioner, who has not chosen to challenge Ext.R4(a) order dated 18.2.2011, is not entitled to any of the reliefs prayed for. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. A comparison of Ext.P2 sketch with the sketch accompanying Ext.P5 report submitted by the Advocate Commissioner will show that it is not possible to draw the line in the manner indicated in Ext.P2. Ext.P2 sketch indicates that there is a pathway to the west of the land belonging to the beneficiary. The report submitted by the Advocate Commissioner would, on the other hand, show that to the west of the land belonging to the fourth respondent lies land belonging to others. Therefore, if a line is to be drawn through the western side of the land belonging to the fourth respondent, the consent of many others will have to be obtained. In the instant case the proposal is to draw the line through a pathway, where a post is already in existence. The petitioner has not W.P(C).No.6143 of 2011 -:6:- disputed the authenticity and genuineness of Ext.R2(a) sketch. From Ext.P7 report submitted by the Village Officer it can be seen that from the post which is already standing in the pathway through which the line is proposed to be drawn, an electricity line can be drawn to the residence of the fourth respondent. It is not in dispute that there is a pre-existing post in the pathway. Such being the situation, the petitioner cannot be heard to contend that the line should not be drawn through that pathway by extending the line from the post already in existence. I therefore, find no grounds to grant the relief prayed for. That apart, the petitioner has not chosen to challenge Ext.R4(a) order passed by the Additional District Magistrate on 18.2.2011. Therefore, for that reason also the relief prayed for by the petitioner cannot be granted. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.6143 of 2011 ---------------------------- JUDGMENT 16th November, 2011