IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 19437 of 2009(Y) ---------------------------------------- PETITIONER(S): ------------------------ SMT.ANNIE MATHEW, AGED 57 YEARS, W/O.V.J.MATHEW, VATTAVAYALIL,JESUS ROAD, VADUTHALA, KOCHI 682 023. BY ADVS. MR.N.JAMES KOSHY, MR.T.SANJAY. RESPONDENT(S): --------------------------- 1. THE CHIEF MANAGER(TLC),POWER GRID CORPORATION OF INDIA LTD, CONSTRUCTION AREA OFFICE, 'CHANDINI' PLOT NO-B,MAVELIPURAM COLONY, KAKKANAD POST, KOCHI 682 030. 2. THE SECRETARY, MELUR GRAMA PANCHAYATH, MELUR, PIN 630 311. 3. ADDITIONAL DISTRICT MAGISTRATE, THRISSUR. R1 BY ADV. MR. MILLU DANDAPANI R2 BY ADV. MR.V.A.MUHAMMED R3 BY GOVERNMENT PLEADER MR. MUHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19437/2009 Y APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTICE DTD. 1/11/2008 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. P2: COPY OF THE OBJECTION DTD. 17/11/2008 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITIONER. P3: COPY OF THE HEARING NOTICE DTD. 15/12/2008 SENT TO THE PETITIONER BY THE 3RD RESPONDENT. P4: COPY OF THE PETITION 12/01/2009 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P5: COPY OF THE COVERING LETTER DTD. 14/01/2009 AND PLAN SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P6: COPY OF THE TWO LOCATIONS IN THE AREA PREPARED BY THE 1ST RESPONDENT. P7: COPY OF THE ORDER NO.C4/SR/ET 170/08/K.DIS. DTD. 12/01/2009 PASSED BY THE 3RD RESPONDENT. P8: COPY OF THE REQUEST LETTER DTD. 25/02/2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P9: COPY OF THE REPRESENTATION DTD. 25/02/2009 SUBMITTED BEFORE THE HON'BLE MINISTER FOR LOCAL ADMINISTRATION, SECRETARIAT, TRIVANDRUM BY THE PETITIONER. P10: COPY OF THE COMMUNICATION DTD. 5/03/2009 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, TRICHUR. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE DECISION OF THE PANCHAYATH COMMITTEE DTD. 22/07/2009. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ================ W.P.(C) NO. 19437 OF 2009 (Y) ===================== Dated this the 30th day of July, 2009 J U D G M E N T The challenge in this writ petition is against Ext.P7, the order passed by the 3rd respondent exercising his powers under Section 16 of the Indian Telegraph Act read with Section 164 of Indian Electricity Act, 2003 . 2. Facts of the case are that the petitioner is the owner of 3.15 Ares of land in Sy.No.997/1 of Mukundapuram Taluk. The 2nd respondent Panchayat also purchased an adjacent plot of 50 cents vide Document No.1148/82 dated 30.3.1982. A 220 KV line from Edomon to Trichur, is passing through the aforesaid plot of land belonging to the Panchayat. 1st respondent is proposing to construct a 400 KVA line as part of the national grid and the proposal was to draw the line through the existing corridor of the 220 KV line mentioned above. 3. The 2nd respondent objected to the proposal on the ground that if 400 KV line is drawn, they will not be able to construct a gas crematorium in their plot of land and requested to shift the alignment. Thereupon the 1st respondent made an WPC 19437/09 :2 : application to the 3rd respondent requesting for removing the obstruction offered by the 2nd respondent. 1st respondent issued Ext.P1 notice to the petitioner and Ext.P2 is the objection filed contending that if the alignment of the line is shifted to her property, several yielding rubber trees will have to be cut and removed and that she will not be in a position to enjoy the whole land. Thereafter parties were issued Ext.P3 notice of hearing and were heard on 23/12/2008. During the course of the proceedings before the 3rd respondent, in order to save her agricultural land, petitioner filed Ext.P4, where she offered 50 cents of land belonging to her to the Panchayat in exchange of the 50 cents already purchased by the Panchayat, so that the line could be drawn through the existing corridor avoiding her property and the Panchayat can also construct its gas crematorium. The proposal made by the petitioner in Ext.P4 reads as under. I have agreed to the exchange of equal extent of land, adjoining to their existing plot, to Meloor Grama Panchayat for construction of the cemetery, so that the gas pipe of 30 mtr height can fall outside the coverage area of the electric line between tower no.57/0 and tower no.58/0. During the discussion, they have agreed to the exchange of property, as it facilitates the construction of the cemetery, and for drawing the electric line through the existing route as and when required. In the circumstance, there is no need of a WPC 19437/09 :3 : deviation of power line between tower 57/0 and tower 58/0. Large scale cutting of trees can be avoided if line is drawn as per the existing route. 4. Along with Ext.P5, petitioner also submitted a sketch. The matter was considered by the Additional District Magistrate and Ext.P7 order was passed. It must be stated that the suitability of this plot offered by the petitioner was not disputed by the 1st respondent. In Ext.P7, the aforesaid suggestion made by the petitioner was also considered, but the ADM noted that the Panchayat had not expressed their willingness to accept the offer made by the petitioner. Thereafter taking into account that offer also, the ADM passed the following order, which reads as under: Out of the two options and three alternatives discussed above, option 1 is seen most feasible as the proposed gas crematorium can be avoided from the line alignment. It is less inconvenient to respondent No.1 as the tower and line will be through the western side of her pineapple garden. Regarding the mutual exchange of land, Panchayat had not expressed their willingness. Moreover, it cannot be considered until it is materialized or Panchayat make a request before the Power Grid corporation to draw the 400 KV electric line through the existing 220 KV alignment, on the ground that they intend to exchange land with respondent No.1. Then the request is to be honoured and line drawn accordingly. Otherwise, the line is to be drawn as per Option No.1 5. A reading of this order shows that if the offer made by WPC 19437/09 :4 : the petitioner was acceptable to the Panchayat, line was to be drawn through the land offered by the petitioner. Once Ext.P7 order was passed by the ADM, petitioner submitted Exts.P8, P9 and P10 representations to the Panchayat, to the Minister and to the Collector himself, requesting that the offer made by her in Ext.P4 be considered and a decision be taken. While there was no response from any one of the aforesaid parties, attempt was made to construct the tower in the petitioner's property and thereupon this writ petition was filed seeking the prayers mentioned above. 6. In this writ petition, Panchayat has filed an affidavit stating that the offer made by the petitioner was considered in the Panchayat meeting held on 22/7/2009 and that the Committee decided to reject the offer. Proceedings of the meeting held on 22/7/09 has been produced as Ext.R2(a). 7. In Ext.R2(a), three reasons are stated to reject the offer made by the petitioner. The first reason is that if any change in the alignment is to be made, that will involve huge expenditure to the Panchayat. Apart from stating that change in alignment will result in expenditure, in what manner expenditure WPC 19437/09 :5 : will fall on the Panchayat is not mentioned in the resolution. As already stated, the tower is to be constructed and the line is to be drawn by the 1st respondent and if the alignment is to be shifted, it cannot result in any added expenditure to the Panchayat and even the 1st respondent does not have a case to that effect. Therefore, the first reason stated in Ext.R2(a) does not appeal to me at all. 8. Counsel for the Panchayat raised a contention that the land was acquired for the purpose of constructing a gas crematorium and therefore, exchange was not possible. I do not think that the said submission is factually correct. This is for the reason that in para 2 of this writ petition, the petitioner has specifically averred that the land in question was purchased by the Panchayat on 30/3/82 by document No.1148/82. This averment is not denied. If so the theory of acquisition does not seem to be factually correct. 9. The second reason stated in Ext.R2(a) resolution is that the land in question was purchased by the Panchayat with the specific purpose of constructing a crematorium. It is stated that the land offered by the petitioner is situated in closer proximity to WPC 19437/09 :6 : residential areas and there is possibility of complaints from the general public. In so far as the contention that there is possibility of objection from the general public is concerned, this concern of the Panchayat certainly needs to be addressed. The location of the crematorium can only be in terms of Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998. Therefore, the land offered by the petitioner can be accepted only if it satisfies the prescriptions in the said rule. When this contention was raised, counsel for the petitioner submitted that if the plot of land presently offered by the petitioner is not suitable as per rules referred to above, the petitioner is willing to offer alternate suitable plot of land, which will satisfy the requirement of the rules and also the requirements of the 1st respondent in all respects. In the light of this offer made by the petitioner, the fact that the land offered by the petitioner lies close to residential area and the likelihood of being objected need not stand in the way of the Panchayat in accepting the offer made by the petitioner. 10. The third objection raised in Ext.R2(a) is that permission of the Government is necessary for exchange of land. When projects such as this are executed, it is the duty of all WPC 19437/09 :7 : concerned to ensure that the damage caused to a citizen is the minimum. For this purpose, if any practical decisions are to be taken and compromises are to be made, the authorities are deemed to be competent for the same and their decisions, so long as it is bonafide and reasonable, will be upheld. Having regard to the fact that, in this case, this Court is satisfied that if the offer made by the petitioner is accepted, it will help the petitioner to save about three acres of agricultural land, and at the same time the purposes of respondents 1 and 2 can be satisfied, I do not think this technical requirement again should stand in the way of the Panchayat, provided the land offered is suitable for the purposes of respondents 1 and 2. Therefore, this reason in Ext.R2(a) for rejecting the offer made by the petitioner is also unsustainable . 11. In the light of the above, I dispose of this writ petition with the following directions. (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 WPC 19437/09 :8 : 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 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 draw 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 WPC 19437/09 :9 : from the date of production of a copy of this judgment, so that the 1st respondent can draw the line without any further delay. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp