IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 27944 of 2009(K) -------------------------- PETITIONER: --------------- SAVITHRI AMMA, KEMATTU HOUSE, KAVALAM P.O., ALAPPUZHA DISTRICT, PRESENTLY RESIDING AT "LAKSHMI NILAYAM", KAVALAPPARA P.O., ATHANI, SHORANUR, PALAKKAD DISTRICT. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISON, MANKOMBU, ALAPPUZHA DISTRICT. 3. THE ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, ALAPPUZHA. 4. SAJIMON, ATTUKADAVU, KAVALAM P.O., ALAPPUZHA DISTRICT. GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKAL ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27944 of 2009(K) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: SALE DEED NO.3680/1985 OF SRO, MANKOMBUR, ALAPPUZHA DISTRICT OBTAINED IN FAVOUR OF THE PETITIONER. EXHIBIT P2: NOTICE NO.2.19906/2008 DTD.6/5/2008 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3: OBJECTION FILED BY THE PETITIONER ON 26/5/2008 BEFORE THE 3RD RESPONDENT. EXHIBIT P4: NOTICE NO.N2.19906/2008 DTD.27/5/2008 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5: NOTICE NO.N2.19906/2008 DTD.31/10/2008 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6: JUDGMENT DTD 11/11/2008 IN W.P.(C)NO.33120/2008 OF THIS HON'BLE COURT. EXHIBIT P7: ORDER NO.K.Dis.N2-19906/08 DTD. 12/11/2008 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8: JUDGMENT DTD.9/1/2009 IN W.P.(C)No.34627/2008 OF THIS HON'BLE COURT. EXHIBIT P9: NOTICE DTD.18/03/2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P10: NOTICE NO.2.6125/09 DTD.19/06/2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P11: NOTICE NO.2.6125/09 DTD.3/8/2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P12: NOTICE NO.2.6125/09 DTD.18/8/2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P13: NOTICE NO.2.6125/09 DTD.8/8/2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P14: ORDER NO.K./dis NO.2.6125/09 DTD.18/9/2009 RECEIVED 3RD RESPONDENT. EXHIBIT P15: SKETCH PREPARED BY THE RESPONDENT BOARD. EXHIBIT P16: SKETCH PREPARED BY THE RESPONDENT BOARD. EXHIBIT P17: SKETCH PREPARED BY THE PETITIONER. RESPONDENTS' EXHIBITS:- EXHIBIT R2(a):- A DETAILED SKETCH SHOWING THE PROPOSED ELECTRIC LINE ROUTE AND ALTERNATE ROUTE SUGGESTED BY THE PETITIONER. True copy P.A. to Judge P.R.RAMACHANDRA MENON, J. ------------------------------------------------ W.P.(C)No.27944 of 2009 -------------------------------------------------- Dated this the 5th day of July, 2010 JUDGMENT The issue involved in this writ petition with regard to drawal of the electricity line, through the property of the petitioner, so as to give power connection to the beneficiary, the fourth respondent. 2. The petitioner is the owner of 17 cents of land in question and when steps were being taken to draw electric line through the property of the petitioner to give electricity connection to the 4th respondent, objections were raised. Apprehending that the objections were to be ignored by the respondent, the petitioner approached this Court by filing W.P.(C)No.33120 of 2008 leading to Ext.P6 judgment. As per Ext.P6, this Court disposed of the writ petition directing that if the order to be passed by the Additional District Magistrate, was detrimental to the interest of the petitioner, it would not be implemented for a period of two weeks. 3. Pursuant to Ext.P6, the matter was considered and the 3rd respondent/Additional District Magistrate, who passed Ext.P7 order on 12/11/2008 accepting the route proposed by W.P.(C).No.27944/2009 : 2 : the Board as the most feasible one and directing them to draw the line through the property of the petitioner to give power supply to the 4th respondent. Contending that the objections raised by the petitioner were never considered while passing Ext.P7 order, the petitioner challenged the same again by filing W.P.(C)No.34627/2008, wherein notice was ordered to the beneficiary by special messenger. Inspite of service of notice, the fourth respondent has not turned up before this Court and finally after considering the merits Ext.P7 order was set aside as per Ext.P8 judgment and the matter was directed to be re-considered. 4. In furtherance to the above verdict, it is contended by the petitioner, that Ext.P9 notice was issued, on receipt of which the petitioner entered appearance and filed objection. A local inspection was conducted on 10/6/2009 and the matter was posted for hearing on 8/7/2009 as informed vide Ext.P10 notice. On 8/7/2009 the petitioner was given to understand that the concerned officer who held the office of the third respondent and conducted the spot inspection earlier, was got transferred and another officer had assumed charge. It is stated that the newly posted officer wanted to conduct a fresh W.P.(C).No.27944/2009 : 3 : inspection of the site before finalising the case and accordingly, the case was adjourned. It is the case of the petitioner that, the local inspection to be conducted afresh was scheduled on different dates, but adjourned as borne Exts.P11, 12 & 13 notices. On the third occasion on 18/9/2009, the nephew of the petitioner, who was representing petitioner, could not be there on the spot and in the said circumstances, a neighbour was arranged by the petitioner to present the case, whose version was however not accepted at the time of inspection held on that day. Still, nothing was heard as to any hearing scheduled and it was without any further hearing, the proceedings were finalised as per Ext.P14, permitting the line to be drawn as proposed by the KSEB, which hence is under challenge. 5. With reference to the sketch produced as Ext.P17 along with I.A.No.15770/2009, the learned counsel for the petitioner submits that, if the line is drawn along the pathway leading to the house of the fourth respondent as shown therein, along the route 'A to E' it will be less than 50 meters. Instead of pointing out the said route as the least expensive and the more feasible one, the same has simply ignored and W.P.(C).No.27944/2009 : 4 : the line has been caused to be drawn, crossing through the property of the petitioner, along the route 'F to J', having an extent of more than 65 meters. 6. The learned Standing Counsel appearing for the Board submits with reference to the contents of the counter affidavit as well as Ext.R2(a) sketch, that there is no pathway as contended by the petitioner, leading to the property of the fourth respondent/beneficiary, who is finding the access to reach his house through the property of somebody else and hence if the line is to be drawn through such route as stated by the petitioner, it will cross through the property of some others as well, who have not given any consent and further that there are houses close to the line proposed to be drawn along the said route, which made it not feasible under any circumstances. 7. The learned Government Pleader seeks to sustain the impugned order stating that there is no pathway leading to the house of the fourth respondent/beneficiary and that the route proposed by the KSEB was accepted by the third respondent as the most feasible one. The learned Government Pleader submits, referring to the last two paragraphs in W.P.(C).No.27944/2009 : 5 : Ext.P14, that the existence of the alternate route was very much taken note of and it was accordingly that a decision was taken to have it examined leading to the site inspection conducted on 18/9/2009. 8. The observations are reasoning for upholding the route proposed by the KSEB, as given in Ext.P14, are relevant in this context, which is extracted below:- “The site was again inspected on 18/9/2009. It is seen that it will be more convenient to draw line as per the proposal suggested in the order passed from this office on 12/11/2008. As per this proposal line will pass through the southern boundary of the property of the respondent and no tress will be cut and removed. The other route suggested by the respondent is shorter than the above proposal but it will pass through in between other two houses which has not necessary distance. In the circumstance considering the direction of the Hon.High Court of Kerala in WP(C)34627/08 and on inspection of the site the 1st proposal of the petitioner is accepted and it is hereby ordered for drawing line to the house of the beneficiary as per the 1st proposal of the petitioner.” W.P.(C).No.27944/2009 : 6 : Going by the contents of the above finding, it is very much obvious that, there is no case for the third respondent that there is no pathway leading to the property of the fourth respondent/beneficiary as contended by the Board in their counter affidavit and as shown in Ext.R2(a) sketch. No pathway is shown in Ext.R2(a) sketch but for showing the proposal 'A to E' crossing through the property of somebody else. If there is a pathway leading to the property of the beneficiary as given in Ext.P17 sketch, the line could be and should be drawn through such pathway, subject to technical clearance. The existence of the houses close to the proposed line as shown in Ext.R2(a) can be avoided if it is drawn along the pathway if any and then by drawing W.P.Wire to give connection to the fourth respondent to the appropriate extent. 9. Similarly, it is also not discernible whether the third respondent has examined the title deed of the 4th respondent/beneficiary, to ascertain whether there is any pathway leading to his property. The absence of the pathway as alleged in the counter affidavit of the Board is not supported in the site inspection conducted on 18/9/2009 in view of the conspicuous absence of any discussion in this W.P.(C).No.27944/2009 : 7 : regard in Ext.P14 and further, the specific averments in the writ petition have not been chosen to be rebutted by the fourth respondent/beneficiary, who has not cared to appear before this Court inspite of serving notice by speed post. 10. In the above facts and circumstances, this Court finds that the matter requires to be re-considered by the third respondent, taking note of the specific observations made by this Court. Accordingly, Ext.P14 is set aside and the third respondent is directed to re-consider the matter and pass final orders after hearing all concerned including petitioner, fourth respondent and other property owners, if any as expeditiously as possible at any rate within a period of 'six weeks' from the date of receipt of a copy of this judgment. Status quo as on today will continue till such date. Writ petition is disposed of. P.R.RAMACHANDRA MENON, JUDGE skj