IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 WP(C).No. 29986 of 2009(P) ---------------------------------------- PETITIONER(S): ------------------------ S.SASIDHARAN, S/O.SREEDHARAN, AGED 35 YEARS, NELLIVILA VEEDU, KAMUKUMCHERRY P.O., PATHANAPURAM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): -------------------------- 1. DISTRICT COLLECTOR (DISTRICT MAGISTRATE) KOLLAM. 2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SBU DIVISION, KERALA STATE ELECTRICITY BOARD, PATHANAPURAM. 3. FALGUNAN, MUKALUVILA VEEDU, KAMUKUMCHERRY P.O., PATHANAPURAM, KOLLAMD DIST. R1 BY GOVT. PLEADER MR.MATHEW GEORGE VADAKKEL. R2 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B, SRI.C.K.KARUNAKARAN, SC FOR KSEB. R3 BY ADV. SRI.R.SURAJ KUMAR, SRI.N.AJITH, SRI.P.M.NEELAKANDAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29986/2009-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PATTA ISSUED IN FAVOUR OF THE PETITIONER. EXT.P2: COPY OF THE PATTA IN THE NAME OF THE PETITIONER AND HIS MOTHER. EXT.P3: COPY OF THE SKETCH SHOWING THE DETAILS OF THE PROPERTIES. EXT.P4: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE MOTHER OF THE PETITIONER DATED 22/02/2006. EXT.P5: COPY OF THE ORDER NO.F11350/06 DATED 09/11/2006 OF THE 1ST RESPONDENT. EXT.P6: COPY OF THE JUDGMENT DATED 29/07/2009 IN WP(C) NO. 29711/2006. EXT.P7: COPY OF THE ORDER NO.M4-5569/09 DATED NIL OF THE 1ST RESPONDENT. EXT.P8: COPY OF THE PHOTOGRAPH SHOWING THE FOUNDATION LAID BY THIS DEPONENT. EXT.P9: COPY OF THE PHOTOGRAPH SHOWING THE WESTERN BOUNDARY AND THE PANCHAYAT ROAD. EXT.P10: COPY OF THE PHOTOGRAPH SHOWING THE BATHROOM AND THE SPACE LEFT FOR THE PASSAGE OF THE MINI LORRY. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE SHOWING THE ELECTRIC LINE ROUTE PROPOSED BY THE K.S.E. BOARD. EXT.R2(b): COPY OF THE PHOTOGRAPH SHOWING THE PROPERTY. //TRUE COPY// P.S. TO JUDGE rs. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 29986 OF 2009 ......................................................................... Dated this the 18th June , 2010 J U D G M E N T The petitioner is aggrieved of Ext.P7 order passed by the 1st respondent permitting the respondent Board to draw electric lines cutting across the pathway of the petitioner, without even leaving the minimum height/vertical distance whereby the petitioner is virtually prevented from taking the vehicles to his premises and further without any regard to the alternate route suggested by the petitioner, conceding that the petitioner did not have any objection to draw the line to provide electricity connection to the 3rd respondent through the nearby property belonging to the petitioner. 2. The learned Counsel for the petitioner with reference to Ext.P3 plan and sketch attached to the Writ Petition submits that there is a P.W.D. Road situated on the southern side of the property of the petitioner shown as item No.1, which is lying 12 to 15 feet below the ground level. There is a Panchayat Road W.P.(C) No. 29986 OF 2009 2 which is proceeding from the P.W.D. Road on the South to the North along the western boundary of the property of the petitioner. The petitioner is constructing a building in item No.1 of the property. The petitioner is also having another property marked as item No.2 on the eastern side of the Panchayat road lying further north to the item No.1. The property immediately on the northern side of the property of the 4th respondent ( who is the beneficiary), is stated as the 'Tharavad' property of the said respondent and also such other extents belonging to his brothers. 3. The case of the petitioner is that there is already an existing line, proceeding to the North from the P.W.D. road on the South, along the Panchayat road and there is a post. If the line is drawn further towards north to reach the point 'F', the line can be drawn crossing item No.2 property, to reach the 'Tharavad' property of the 3rd respondent, from where the line can be taken easily to give connection to the 3rd respondent instead of causing unnecessary hardships to the petitioner, in W.P.(C) No. 29986 OF 2009 3 drawing the line from the P.W.D. Road at point 'A' situated 12 to 15 feet below ground level to reach the point 'B', crossing the pathway as proposed by the Board. 4. When the steps were being pursued to cause the line to be drawn across the pathway of the petitioner , the petitioner approached this Court by filing W.P.(C) No.29711 of 2006, wherein Ext.P6 judgment was passed directing the first respondent to pass final orders after hearing all the parties concerned. Pursuant to Ext.P6, the first respondent conducted a site inspection and arrived at a finding that there was considerable force in the objection raised from the part of the petitioner. But the objection was overruled and the Board was permitted to draw the line along the said route as proposed by the Board, simply for the reason that there was no other alternate route to provide connection to the third respondent, unless the line was caused to be drawn through the property of somebody else. 5. The learned Counsel for the petitioner submits that such crossing could be drawn through the other property of the W.P.(C) No. 29986 OF 2009 4 petitioner (item No.2) offered by the petitioner, which is not seen considered or analysed by the first respondent and the feasibility has not been looked into with regard to its relative merits and de-merits, but for making some vague observations, which hence is under challenge in this Writ Petition. 6. A counter affidavit has been filed by the second respondent seeking to sustain Ext.P7 order passed by the first respondent, also producing a sketch as Ext.R2 (a). It is stated that the line as proposed by the Board is the most feasible one. No counter affidavit or statement has been filed from the part of the beneficiary/third respondent. 7. When the matter came up for consideration earlier, it was found that there was no dispute with regard to the lie and location of the property as given by the petitioner in Ext.P3 sketch. In view of the submission made by the learned Counsel for the petitioner that the petitioner had no objection to draw the line, crossing through the property of the petitioner in some other manner, than by crossing the pathway, this Court observed that there was a chance to consider drawing of the line W.P.(C) No. 29986 OF 2009 5 from the existing line proceeding from the P.W.D. road to the Panchayat road from South to North and then, along the northern boundary of the petitioner, so as to have it taken to reach the property of the third respondent situated on the eastern boundary of a portion of item No.1 property of the petitioner . The learned Counsel for the petitioner submits that there was absolutely no objection to the petitioner to have such a course and that the line could be drawn accordingly, if necessary by planting a post inside the property of the petitioner near to the property of the third respondent. 8. In the course of subsequent hearing held today, the learned Standing Counsel for the Board submits that the matter was consulted with the concerned Engineer and that there is only a gap of one metre between the northern extremity of the proposed building and the boundary of the petitioner and further that there is a 'bathroom' and a 'well' situated towards north eastern corner of item No. 1 of property of the petitioner, adjacent to the property of the third respondent and as such, it may be difficult to draw the line. This however is strongly W.P.(C) No. 29986 OF 2009 6 rebutted from the part of the petitioner stating that there is sufficient space even after leaving the 'bathroom' as it is. Photographs of the lie and location of the property and the bathroom were also placed before this Court for consideration which suggested that the bathroom cannot have a height of not more than 8 feet. 9. Going by the rival pleadings, submissions and the materials on record, it is very much evident that the first respondent was very much satisfied as to the genuineness of the grievance of the petitioner, which was stated as substantiated in the course of site inspection, as reflected from Ext.P7 order itself. Then the question is whether any other alternate route is available to provide electric connection to the third respondent /beneficiary, minimising the hardships to be caused to the petitioner. When the petitioner expressed his willingness to provide connection to the third respondent to have the line caused to be drawn, either by crossing his item No.2 property after drawing the line upto the point 'F' from 'E' and then through the property of the 'Tharavad' of the third W.P.(C) No. 29986 OF 2009 7 respondent or by drawing the line directly from the Panchayat road along the northern boundary of item No. 1 property over the 'bathroom' and 'well'. This Court finds that the submission made from the part of the petitioner is with utmost bonafide. 10. The learned Counsel for the petitioner submits that the line was caused to be drawn on the basis of Ext.P7 order, but there is no minimum clearance as contemplated under Rule 17 (9), which stipulates that minimum clearance shall be 5.8 metres for service lines which presently is having 2.2. metres. This Court finds that such a course ought not to have been permitted by the first respondent. With regard to the contention raised from the part of the Board that the proposal now made during the course of hearing, for causing the line to be drawn through the northern boundary of item No.1 of the property of the petitioner, over the bathroom situated on the corner of the property or otherwise, to provide connection to the third respondent, stating that there is no horizontal minimum clearance since the gap is only one metre, the learned Counsel for the petitioner submits that the distance to be maintained as W.P.(C) No. 29986 OF 2009 8 stipulated is 1.2 metres as per the Rules, which also provides that if the horizontal distance is less than the prescribed extent, drawing of the line is still permitted, if it is 'adequately insulated'. 11. In the above facts and circumstances, this Court finds that, it is very much possible to draw the line from the existing line going North through the Panchayat road, along the western side of item No.1 of the property, to be taken to the property of the third respondent along the northern boundary of item. No1 of the petitioner's property by planting necessary posts or otherwise, if necessary. It is also possible, if the line is drawn from the point 'E' to 'F' as shown in Ext.P3 and then to have crossed through item No.2 of the petitioner's property, to reach the 'Tharavad' property of the third respondent and to be taken to the property of the third respondent, crossing through the property of the other persons in between, who are never strangers, but brothers of the third respondent himself. In any view of the matter, since the petitioner conceded his willingness to have the line drawn crossing through item No.1 property itself W.P.(C) No. 29986 OF 2009 9 along his northern boundary as mentioned hereinbefore, the matter has to be given effect to, by resorting to either of the above two courses. In the above circumstance, Ext.P7 order passed by the first respondent permitting to cause the line to be drawn from the point 'A' to 'B' with much hardship to the free ingress and agress to the building of the petitioner (which is situated with an upward inclination from the point 'C' to 'D') is held as detrimental and accordingly the same is set aside. The respondent Board is directed to cause the line to be drawn to the property of the third respondent, either through the item No.2 property of the petitioner and also through the 'Tharavad' property of the third respondent as mentioned above or by directly drawing the same from western portion of the panchayat road, along the northern boundary of item No.1 belonging to the petitioner. The proceedings in this regard shall be finalised as expeditiously as possible, at any rate within one month from the date of receipt of a copy of the judgment. It is further made clear that other infrastructures made use of, for providing W.P.(C) No. 29986 OF 2009 10 connection to the third respondent while drawing the line from the point 'A' to 'B' can very well be made use of, if not defective in any manner for providing connection in the alternate route as ordered above. The cost of the balance materials if any, if the line is drawn through northern boundary of the item No.1 of the property of the petitioner, shall be satisfied by the petitioner, as and when demanded. The Writ Petition is allowed to the above extent. No cost P.R. RAMACHANDRA MENON, JUDGE. lk