IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 WP(C).No. 23869 of 2010(G) ----------------------------------------- PETITIONER(S): ---------------------- ONATHKATTIL RAYIN, S/O.MOIDEEN, PO MARAKKARA, VIA KADAMPUZHA, MALAPPURAM DISTRICT, PIN-676 882. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): ------------------------- 1. THE ADDITIONAL DISTRICT MAGISTRATE, MALAPPURAM, PIN-676 505. 2. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM, PIN-695 004. 3. THE ASSISTANT EXECUTIVE ENGINEER, K.S.E.B., 220 KV SUB STATION SUB DIVISION, MALAPARAMBA, MALAPPURAM DISTRICT, PIN-676 505. R1 BY GOVT. PLEADER SRI.BASANT BALAJI R2 & R3 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.23869 of 2010 ---------------------------------------- Dated 10th December, 2010 JUDGMENT The petitioner who is in possession of 99 cents of land in Resurvey No.28 of Kattiparuthi Village in Malappuram District filed this writ petition challenging Ext.P9 order passed by the first respondent under section 16(1) of the Indian Telegraph Act. The second respondent Kerala State Electricity Board is proposing to draw a 110KV Double Circuit line from 220KV Sub Station, Malaparamba to 110KV Sub Station, Kuttippuram for a distance of 16.5 Km. with a view to provide quality power supply to the general public in Malappuram District. As per the proposed alignment, lines have to be drawn over the property of the petitioner. The petitioner raised objections to the same. Thereupon, the third respondent preferred a complaint before the first respondent under section 16(1) of the Indian Telegraph Act, 1885 read with section 164 of the Indian Electricity Act, 2003. The first respondent issued notice to the petitioner and the third respondent. The said proceedings have culminated in Ext.P9. It is challenging the said order that this writ petition has been filed. Essentially, the grievance of the petitioner is that Ext.P9 order has been passed in violation of the principle of audi alteram WP(C).No.23869/2010 2 partem as he was not given an opportunity to raise his objections. In fact, the site inspection was conducted without notice to him. The contents of the report of the site inspection was also not furnished to him. That apart, it is his contention that while passing Ext.P9 the specific contentions raised by the petitioner were not adverted to by the first respondent. In short, according to the petitioner, if he was put on notice with respect to the site inspection or at least he was furnished with the details and materials gathered by the first respondent in the said site inspection, he could have raised his objections in an effective manner. Based on the averments made in this writ petition the learned Government Pleader was directed to get instructions as to whether site inspection was conducted with notice to the petitioner. The records would show that it was done without notice to the petitioner. 2. The learned standing counsel appearing for respondents 2 and 3 and the learned Government Pleader would submit that in fact, there is no such report prepared by the first respondent based on the site inspection. In fact, the first respondent has only given a direction to the Electrical Inspector to conduct an inspection and to file a report. Ext.P5 is the report submitted by the Electrical Inspector. The said report was furnished to the petitioner and the petitioner had filed objections with WP(C).No.23869/2010 3 respect to the same. In view of the said position, it is contended on behalf of the respondents that the petitioner could not raise any grievance with respect to non-furnishing of the report by the first respondent as there is no report as such. Copy of the report submitted by the electrical inspection before the first respondent was furnished to the petitioner and he was afforded with an opportunity to raise his objections with respect to the same. In short, according to them, there is no procedural illegality or irregularity. 3. The learned counsel for the petitioner would submit that copy of Ext.P5 has been served on the petitioner and that he has submitted his objections with respect to the same. However, it is the contention of the learned counsel that a perusal of Ext.P9 would not reveal that his objections were properly considered while passing Ext.P9. It is true that in Ext.P9 reference has been made with respect to the report submitted by the electrical inspector dated 26.5.2010. At the same time, a perusal of Ext.P9 would reveal that while considering the said report the objections raised by the petitioner and his contentions were not at all adverted to. In Ext.P9 it is stated that the proposed route is the most suitable one besides being techno economically feasible. In matters wherein the property rights of third parties are likely to be affected the WP(C).No.23869/2010 4 authority concerned has to apply its mind while passing an order. Ext.P9 order would not reveal that all the objections raised by the petitioner were properly considered by the authority. In short, the petitioner is justified in contending that the matter requires a fresh consideration. However, the learned counsel appearing for respondents 2 and 3 submitted that since public interest is involved in this matter, it requires an expedite consideration as the very proposal itself was mooted with a view to provide quality power supply to general public in Malappuram District. There cannot be any doubt with respect to the position that when public interest and private interest are in conflict the private interest has to give way to the public interest. At the same time, the property right of a party can be taken away only in the manner which is prescribed under law. Non-consideration of the contentions of the petitioner in a matter affecting his property rights cannot be lightly taken. In view of the above position, I am of the view that the complaint by the third respondent before the first respondent requires a fresh consideration after affording the petitioner and the 3rd respondent an opportunity of being heard. To enable the first respondent to consider the issue afresh, Ext.P9 is set aside. Accordingly, there will be a direction to the first respondent to consider the issue afresh and pass orders thereon . The parties, viz., the WP(C).No.23869/2010 5 petitioner and the third respondent shall appear before the first respondent on 5.1.2011. The first respondent will be at liberty to fix a date for hearing the matter thereafter. A decision thereon shall be taken as expeditiously as possible. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge TKS // true copy // P.S. to Judge