IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(C).No. 7051 of 2011(F) ------------------------- PETITIONER(S): --------------------- 1. ELEZABETH KURIAN, D/O.LATE JEROME KURIAN, KANDAMTHOTTUKARA HOUSE, VALLAPUZHA, NILAMBUR AMSOM, NILAMBUR DESOM, ERANAD TALUK, MALAPPURAM DISTRICT. 2. ANNAMMA KURIAN, D/O.LATE JEROME KURIAN, KANDAMTHOTTUKARA HOUSE, VALLAPUZHA, NILAMBUR AMSOM, NILAMBUR DESOM, ERANAD TALUK, MALAPPURAM DISTRICT. 3. SHEEBA KURIAN, D/O.LATE JEROME KURIAN, KANDAMTHOTTUKARA HOUSE, VALLAPUZHA,NILAMBUR AMSOM, NILAMBUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. (PETITIONERS REP.BY POWER OF ATTORNEY HOLDER SMT.ANNIE KURIAN, W/O.LATE JEROME KURIAN, KANDAMTHOTTUKARA HOUSE, VALLAPUZHA, NILAMBUR AMSOM, NILAMBUR DESOM. ERANAD TALUK, MALAPPURAM DISTRICT). BY ADVS. SRI.JOSEPH SEBASTIAN PURAYIDAM SMT.MABLE.C.KURIAN RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 695 004 2. ASST.EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, T.C.SUB DIVISON, NILAMBUR, MALAPPURAM DISTRICT. 679329 3. ASSISTANT ENGINEER, T.C.SECTION, K.S.E.B.PUKOTTUMPADAM. 679328 4. ADDITIONAL DISTRICT MAGISTRATE MALAPPURAM, MALAPPURAM DISTRICT. 676505 WP(C).No. 7051 of 2011(F) -------------------------------------- 5. THE SECRETARY, AMARAMBALAM GRAMA PANCHAYATH, NILAMBUR TALUK, MALAPPURAM DISTRICT. 679329 6. HUSSAIN ALIAS KUNJUTTY, S/O.LATE ABDULLA KUTTY, THARIPPAMANNIL HOUSE, NARIPPOYYIL, AMARAMBALAM POST, NILAMBUR TALUK, MALAPPURAM DISTRICT. 679329 7. ABUBECKER, S/O.LATE ABDULLA KUTTY, THARIPPAMANNIL HOUSE, PALLIKKUNNU AMARAMBALAM POST, NILAMBUR TALUK, MALAPPURAM DISTRICT. 679 329 R1-3 BY ADVS. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.K.M.SATHYANATHA MENON R5 B7 ADV. SRI.V.RAJENDRAN R6 BY ADVS. SRI.M.G.ARUN SRI.M.A.ABDUL HAKHIM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 7051 of 2011(F) ------------------------------------- APPENDIX -------------- PETITIONER'S EXHIBITS ----------------------------------- EXTP1. COPY OF THE PETITION FILED BY THE 2ND RESPONDENT BEFORE THE 4TH RESPONDENT DATED NIL EXTP2. COPY OF THE COUNTER STATEMENT DATED 10.11.2010 FILED BY THE PETITIONERS. EXT.P3.COPY OF THE REPORT SUBMITTED BY THE ELECTRICAL INSPECTOR, MALAPPURAM DATD 1.12.2010 EXT.P4. COPY OF THE REPORT WITH THE SKETCH SUBMITTED BY THE ADDL TAHSILDR, NILAMBUR DATED 15.12.2010. EXT.P5. COPY OF THE REPORT DATED 22.12.2010 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 4TH RESPONDENT WITH THE SKETCH ALONG WITH IT. EXT.P6. COPY OF THE PETITION DATED 22.12.2010 FILED BEFORE THE 4TH RESPONDENT BY THE PETITIONERS. EXT.P7. COPY OF THE PETITION DATED 30.12.2010. EXT.P8. COPY OF THE RECEIPT DATED 31.12.2010 ISSUED FROM AMARAMBALAM GRAMAPANCHAYATH. EXT.P9. COPY OF THE ORDER WITH NO.F3-50460/10/KDIS DATED 02.02.2011. RESPONDENT'S EXHIBITS : NIL ------------------------------------ / TRUE COPY / P.A. TO JUDGE VK P.N. RAVINDRAN, J. ------------------------------- W.P (C) No. 7051 of 2011 ------------------------------- Dated this the 31st day of October, 2011 J U D G M E N T This writ petition is filed challenging Ext.P9 order passed by the Additional District Magistrate, Malappuram directing respondents 1 to 3 to shift the proposed 33 KV line to the northern boundary of the property of the petitioners and the stipulation therein that the line has to be drawn 7 metres to the south of the northern boundary of the petitioners' property for the purpose of maintaining the statutory clearance. The brief facts of the case are as follows:- 2. The petitioners own separate parcels of land lying contiguously to the south of a public road. When the Kerala State Electricity Board took steps to draw a 33 KV line through their properties through which a 11 KV line already passes, the petitioners filed objections. They contended that line can be drawn along the northern boundary of their lands. In view of the objection raised by the petitioners, the second respondent moved the Additional District Magistrate, Malappuram under section 16 of the Indian Telegraph Act, 1885. Notice was issued to the petitioners and they were heard. A local inspection was also caused to be conducted through the Tahsildar. The Tahsildar submitted Ext.P4 report to the effect that if W.P.(C) No.7051 of 2011 2 the proposed line is drawn through the northern boundary of the land belonging to the petitioners, the branches of 15 trees standing in the lands belonging to respondents 6 and 7 will have to be cut and removed, but they are not willing to do so. The Tahsildar also reported that the lands belonging to respondents 6 and 7 are situate further to the north of the public road separating their lands from the lands belonging to the petitioners. It was in view of the said report that the Additional District Magistrate directed respondents 1 to 3 to shift the proposed 33 KV line to the northern boundary of the property of the petitioners with a rider that the line has to be drawn 7 metres to the south of the northern boundary of the petitioners' property for the purpose of maintaining the statutory clearance. The main contention raised in the writ petition is that as a public road separates the land belonging to the petitioners and respondents 6 and 7, the line should be drawn along the northern boundary of the land belonging to the petitioners after pruning the overhanging branches of trees standing in the properties of respondents 6 and 7. 3. Respondents 1 to 3 have filed a counter affidavit wherein it is stated that the Board can draw the proposed line 3 meters to the south of the northern boundary of the land belonging to the petitioners. It is also stated that if the line is shifted further to the W.P.(C) No.7051 of 2011 3 north of the land belonging to the petitioners, a dispute is likely to arise, as it will involve cutting and removal of trees standing in the properties of respondents 6 and 7. 4. When the writ petition came up for hearing today, the learned standing counsel for the Kerala State Electricity Board submitted that the seventh respondent has cut and removed the branches of trees standing in his property which overhang into the properties of the petitioners and the public pathway and the seventh respondent has no objection in the line being drawn along the northern boundary of the land belonging to the petitioners. Sri.M.A.Abdul Hakim, learned counsel appearing for the sixth respondent submitted that the sixth respondent has objection to the line being drawn along the northern boundary of the petitioners' land as the overhanging branches of trees standing in his property will have to be cut and removed. 6. I have considered the submissions made at the Bar by the learned counsel on both sides. It is evident from the pleadings and materials on record and the submissions made at the Bar that but for the fact that branches of trees standing in the properties of respondents 6 and 7 overhang into the public road running along the southern boundary of the lands belonging to respondents 6 and 7 and W.P.(C) No.7051 of 2011 4 also into the property of the petitioners, the Additional District Magistrate would have directed that line should be drawn along the northern boundary of the land belonging to the petitioners'. It was to prevent the cutting and removal of the overhanging branches of trees standing in the properties of respondents 6 and 7 that in Ext.P9 a direction was issued that the line should be drawn 7 meters to the south of the northern boundary of the lands belonging to the petitioners. The seventh respondent has thereafter cut and removed the branches of trees standing in his property. The only objection to the line being drawn through the northern boundary of the petitioners' was that the branches of trees standing in the property of respondents 6 and 7 that overhang into the properties of the petitioners will have to be cut and removed. Though the seventh respondent has voluntarily cut and removed the overhanging branches of trees standing in his property, the sixth respondent is not willing to do so. In my opinion, that by itself cannot be a reason to hold that no interference is called for with Ext.P9 order. As noticed earlier, a public road separates the lands belonging to the petitioners and respondents 6 and 7. The branches of trees standing in the sixth respondent's land overhang into the land belonging to the petitioners and also the public road. If the overhanging branches are cut, the W.P.(C) No.7051 of 2011 5 line can be drawn along the northern boundary of the land belonging to the petitioner. In my opinion, the stand taken by the sixth respondent cannot be sustained. Such being the situation, I am of the opinion that the Kerala State Electricity Board should be permitted to draw the line along the northern boundary of the land belonging to the petitioners by cutting and removing the branches of trees standing the property of the sixth respondent, which overhang into the lands belonging to the petitioners, if he does not voluntarily remove the overhanging branches. I accordingly dispose of the writ petition with a direction to respondents 1 to 3 to draw the proposed 33 KV line along the northern boundary of the land belonging to the petitioners. For that purpose, it will be open to respondents 1 to 3 to cut and remove the branches of trees standing in the property of sixth respondent which overhang into the petitioners' property. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No. 7051 of 2011 JUDGMENT Dated:- 31st October, 2011 --------------------------------------