IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 6385 of 2008(I) -------------------------------------- PETITIONER: -------------------- SMT.FATHIMA BEEVI, W/O.LATE MINISA, KALAKKOTTUPARAMBIL HOUSE, VOTTUKADAVU ROAD, CHALAKUDY. BY ADV. SRI.K.P.KAMALAKARA BABU RESPONDENTS: ------------------------ 1. THE ADDITIONAL DISTRICT MAGISTRATE, THRISSUR DISTRICT, THRISSUR. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VYDUTHI BHAVANAM, PATTOM, TRIVANDRUM. 3. THE ASSISTANT EXECUTIVE ENGINEER, T.C.SUB DIVISION, KSEB, CHALAKUDY. 4. SHRI. JACOB, S/O.MUNDAN MANI KURIAKOSE, CHIRAYATH, VETTUKADAVU, CHALAKUDI. BY GOVERNMENT PLEADER SRI. BENOY CHANDRAN – R1 BY SRI. P.P.THAJUDEEN, SC, KSEB – R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.6385/2008 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPRESENTATION DTD. 18/12/2001. EXT.P1(A): COPY OF THE PETITION COMMITTEE ISSUED DIRECTIONS TO THE BOARD AUTHORITIES DTD. 24/09/2004. EXT.P2: COPY OF THE NOTICE NO.C4.39705/2000 DTD. NIL REFERRING TO DB9 33KV/COMPLAINT/2000-01/98 DTD. 15/07/2000. EXT.P3: COPY OF THE SKETCH. EXT.P4: COPY OF THE ORDER NO.39705/2000/04 DTD. 26/08/2004. EXT.P5(A): COPY OF THE CORRESPONDENCE DTD. 19/03/2007. EXT.P5(B): COPY OF THE CORRESPONDENCE DTD. 3/04/2007. EXT.P5(C): COPY OF THE CORRESPONDENCE DTD. 12/02/2008. EXT.P6: COPY OF THE ORDER ON 4/2/2008. RESPONDENT'S EXHIBITS: EXT.R2(A): SKETCH SHOWING THE ALIGNMENT. EXT.R2(B): SKETCH SHOWING THE EARLIER PROPOSAL. EXT.R2(C): SKETCH SHOWING THE PRESENT PROPOSAL. /TRUE COPY/ P.S.TO JUDGE Kss K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 6385 OF 2008 I -------------------------------------- Dated this the 22nd August, 2008 JUDGMENT Petitioner challenges Ext.P6. She also seeks a mandamus commanding the respondents not to draw the line as per Ext.P6 without adverting to the sketch approved by the Additional District Magistrate on 4.12.2001 or to Ext.P3 sketch. 2. Briefly put, the case of the petitioner is as follows: Petitioner is a widow and is residing with her four daughters who are unmarried and one son who is mentally not well. She has no income other than the meagre income from the agricultural crops. The second respondent, Electricity Board, unilaterally attempted to draw a 33 KV high tension line across the property of the petitioner which is already damaged on the southern side of the property by the existing 110 KV line drawn from Kalamassery to Chalakudy Sub Station. It is stated that the petitioner objected to the proposal and she filed Ext.P1 before the Petition Committee of the Kerala Legislative Assembly WPC.6385/08 I 2 which issued directions as Ext.P1(a). The matter was referred to the Additional District Magistrate, Thrissur vide Ext.P2. The matter was heard by the Additional District Magistrate on various dates mentioned. Petitioner submitted a sketch showing alternate proposal which should have redressed the grievance of the petitioner and which would not have caused any harm to the fourth respondent. The further cost and expenditure would have reduced if the alternate route submitted by the petitioner is considered. Ext.P3 is a sketch produced showing the alternate route. There was a site inspection and the Additional District Magistrate was, prima facie, satisfied and he has signed and approved the site plan incorporating petitioner's suggestions as well as the Board in the presence of all. This sketch was approved by Sri. T.G. Sukumaran, the then ADM. The matter progressed. Thereafter, there were two site inspections. During the hearing, the petitioner through her brother had suggested for the feasibility of Ext.P3 alternate route which could be drawn through the northern side of Chalakudy - Vettukadavu Road WPC.6385/08 I 3 beyond the properties of the petitioner as well as of the fourth respondent and then through the paddy lands which would cause no harm to anybody including the petitioner and the fourth respondent. Moreover, it is stated that, no vegetation or crop and trees has to be cut and removed as nothing existed on the proposed route and the Board could have saved considerable money. The fourth respondent did not participate in the proceedings. However, the Additional District Magistrate passed Ext.P4. It is stated that Ext.P4 was solely based on the sketch approved by the ADM during the site inspection. The original sketch approved was intended to avoid damages to the vegetation. The word vegetation is intended to the property of the petitioner since there alone had any vegetation at all. Neither the respondent, nor any other adjoining to the northern side of the Chalakudy - Vettukadavu road has any vegetation of any sort even today. What the ADM intended was to draw the line on the western boundary of the fourth respondent and over the shed of the Health Club existing in the compound of the WPC.6385/08 I 4 fourth respondent and therefore, vertical clearance was ordered to be maintained and emphasis was given to the words "cause least damages to the nearby vegetation". Petitioner feeling aggrieved by Ext.P4 order of the ADM instituted OS No.130/07 before the Munsiff Court, Chalakudy. Thereafter, the petitioner withdrew the same to enable seeking remedies from this Court. According to petitioner, she sought for copy of the original sketch approved by the ADM and she was informed that the same is missing. Exts.P5(a), P5(b) and P5(c) are produced. The fourth respondent filed a Writ Petition as W.P.(C). No.31114/04 challenging Ext.P4. It is stated that the third respondent filed a Counter Affidavit with a sketch, making some alterations to the tune of benefiting the fourth respondent. The same was cleverly moulded and the fourth respondent withdrew the Writ Petition by filing a Not Pressed Memo. As a sequence to the same, with malafide intention, the third respondent filed a petition before the ADM to clarify Ext.P4 order and thus ensued Ext.P6. 3. A Statement has been filed on behalf of the respondent WPC.6385/08 I 5 Electricity Board. It is stated that the drawing of the line through the boundary of the property of the petitioner was proposed, to avoid drawing of the line through the middle of the petitioner's property. In Ext.P6 it was clarified that if the entire line is drawn over the shed, the line will take a different direction. It is stated that the total length of the line is 7 Kms. and drawal of a few metres of line and insertion of two towers is only pending. Ext.R2(a) is the drawing of the line. Ext.R2(b) is the sketch containing the earlier proposal. Ext.R2(c) is the present proposal. Petitioner filed a Reply Affidavit denying the allegations and, inter alia, stating that a glance of the drawing will reveal that 3 Kms. could have been saved, had it been attempted to be drawn parallel to the existing 66 KV/110 KV lines and the huge expenditure incurred for this additional 3 Kms. as also 8 Nos. of crossing the existing 66 KV/110 KV lines could have been saved, had they drew the line straight and parallel to the existing lines. It is stated that the respondent4s have not cared for technical feasibility. Longer the lines more WPC.6385/08 I 6 expenditure, more transmission loss and more is the inconvenience to the public as the line passing and tower occupying areas increases. It is further stated that Ext.R2(b) drawing is purported to cheat the public and that Ext.R2(c) will indicate the dubious and doubtful design of the respondents. Instead of drawing through the boundary, the tower was inserted fully inside the boundary of the petitioner. It is stated that there exists five metre width road puramboke on the northern side of the road and that line could have been drawn through the same and that, loss to vegetation could have been avoided. 4. I heard Shri Kamalakara Babu, learned counsel for the petitioner, learned Government Pleader and the learned standing counsel for the respondent Electricity Board. Learned counsel for the petitioner reiterates his contentions. He submits that if actually the line had been drawn parallel to the existing 66 KV/110 KV lines, there would have been saving to the public coffers in a very huge sum as the length could have been reduced by three kilometres. He further submits that having WPC.6385/08 I 7 regard to the condition of the petitioner's family, and the fact that the petitioner is depending on the income from the agricultural operations being carried out in the land, the impugned order has arbitrary results and all of it could be avoided if the alternate proposal canvassed were accepted. In particular, he points out that it was proposed by the petitioner that the line could have been drawn on the northern portion of the road in front of the petitioner's property which is a puramboke land and then drawn through the paddy fields. Injustice could have been avoided, he contends. He further points out that when the line is drawn east - west, the trees of the petitioner will be damaged and cut and the proposal involves drawing of the line north - south, solely through the property of the petitioner. This could have been avoided if the alternate proposal of the petitioner is accepted. 5. Learned Government Pleader and the learned standing counsel point out that Ext.P4 has not been challenged by the petitioner in this case. It is further submitted that the earlier WPC.6385/08 I 8 proposal in fact involved drawing of the line across the property of the petitioner. It is to avoid the same that the present proposal as approved by the District Magistrate in Ext.P4 came to be passed. The said order is not in challenge. When the line was to be drawn as approved by the District Magistrate, since going by the wording of Ext.P4, vertical distance was directed to be maintained from the shed in the property of the fourth respondent and an objection came to be raised by him that, that was not the purport of Ext.P4 which necessitated the proceedings before the District Magistrate culminating in Ext.P6 order. It is pointed out that there is no injustice. 6. Admittedly, Ext.P4 is not in challenge before me. Petitioner had instituted a Suit challenging Ext.P4, but concededly, the petitioner withdrew the Suit without prejudice to the remedies to be sought in this Court. But, the petitioner has not challenged Ext.P4. So, in order to appreciate the contentions, it is necessary to ascertain what is the position to which the petitioner admits to. In Ext.P4 order passed by the WPC.6385/08 I 9 District Magistrate in exercise of his powers under Section 16 of the Indian Telegraph Act, it is stated as follows: "The site was again inspected by the undersigned on 24.8.2004. All concerned were present except respondent -(2). I am convinced that the line can be drawn through the southern side of the road and then through the eastern boundary of the respondent-(1) and western boundary of respondent-(2). There is a temporary shed of a Health Club existing in the compound of respondent-(2). While drawing the line Asst. Executive Engineer should keep vertical clearance from the shed and cause least damages to the nearby vegetations. The purpose of the project is to reduce transmission losses and to supply good quality and reliable power to the consumers. Hence the Asst. Executive Engineer, T.C. Sub Division, is permitted to draw the line as above." 7. This means that the alternate proposal which the petitioner is now contending for, namely drawing of the line along the puramboke land on the northern side of the road cannot be accepted as it is going back on the specific terms of WPC.6385/08 I 10 Ext.P4 which involves drawing of the line through the southern side of the road and then through the eastern boundary of the petitioner and the western boundary of the fourth respondent. It is pointed out by the standing counsel that the line which has to be drawn on the southern side of the road, which will be on the northern boundary of the petitioner's property, will be along the public road. Necessarily, the authorities will take the maximum care to see that least damages are done to the vegetation of the petitioner while drawing the line on the southern side of the road. 8. Apparently, the objection came to be raised by the fourth respondent as adhering to the terms of Ext.P4 would have been meant that the entire line would have been drawn through his property. Learned standing counsel points out that the line will be drawn north - south along the boundary of the property of the petitioner and the fourth respondent and I record the same. If this is the proposal, I fail to see apart from the fact that the petitioner has not challenged Ext.P4 and which should hence WPC.6385/08 I 11 be binding on her, how there is such a miscarriage of justice as to warrant this Court's interference under Article 226 of the Constitution of India. This Court does not sit in appeal over the order of a public authority. It will not substitute its view for that of the public authority. It will not consider the wisdom of the drawing of the line which, according to petitioner, will involve excess expenditure. These are all matters which should normally be left to the experts and interference can be premised only if it is shown to be palpably perverse or malafide or on extraneous considerations. I do not find that the petitioner has made out such a case for me to find that the alignment of the 33 KV line is such as to warrant interference. I would think that on a totality of the facts of this case and also taking note of the submissions of the learned standing counsel which I have recorded, the petitioner has not made out a case for interference and the Writ Petition is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk.