IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 WP(C).No. 22400 of 2008(N) -------------------------- PETITIONER(S): --------------- MADHUVANI, W/O.RAJAN, 53 YEARS, R/A. PUNATHIL, KURUVATTOOR AMSOM, KONOTTU PO., KOZHIKODE-673571. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. THE ASSISTANT ENGINEER, KERALA STATE ELECTRIC BOARD, KAKKODI. 2. SAJI KUMAR.K.V., S/O.RAGHAVAN NAMBIAR HOUSE.NO.9/402B, NADUVILAKANDI PARAMBU KONOTTU PO., KOZHIKODE-673571. 3. THE ADDL.DISTRICT MAGISTRATE, KOZHIKODE. ADV. SRI.K.M.FIROZ FOR R2 ADV.SRI.P.P.THAJUDEEN, SC, KSEB FOR R1 GOVERNMENT PLEADER SRI.BEJOY CHANDRAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF NOTICE DT 17.11.07 P2 COPY OF STATEMENT DT 7.3.08 BY R2 BEFORE R3. P3 COPY OF OBJECTION DT 4.4.08 BEFORE R3. P4 COPY OF ORDER DT 3.7.08 BY R3. /TRUE COPY/ P.A.TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 22400 OF 2008 N ```````````````````````````````````````````````````` Dated this the 25th day of September, 2008 J U D G M E N T Petitioner calls in question Ext.P4. Ext.P4 is an order passed granting permission to the electricity authority to draw line for giving electric connection to the 2nd respondent. 2. Heard learned counsel for petitioner, learned Government Pleader, learned standing counsel and learned counsel appearing on behalf of the 2nd respondent. 3. By the impugned order, the Additional District Magistrate has granted permission for drawing electric line along the way which he describes as a pathway. The pathway apparently runs on the west of the property of the 2nd respondent and it leads to what is called Kacherikunnu- Payimbra road. According to the learned counsel for petitioner, the impugned order is violative of the principles laid down by this Court in Valsamma Thomas Vs. Additional District Magistrate [1997 (2) KLT 979]. He took me to the WPC.22400/08 : 2 : order. He points out that the petitioner had filed an elaborate objection as Ext.P3 before the Additional District Magistrate. In Ext.P3, the petitioner had suggested various alternate routes. The line could be drawn, he contends, from the posts situated at far lesser distance. They are mentioned in paragraphs 2 and 3 of Ext.P3. Despite the suggestion of the petitioner regarding the alternate routes available, it is answered by a cryptic order rejecting the same by the Magistrate. This falls foul of the requirement of the aforesaid dictum laid down by this Court, contends the learned counsel for petitioner. 4. On the other hand, the learned counsel for 2nd respondent would contend that actually there is a public pathway adjoining the so called private pathway which, according to the petitioner, exists even on a perusal of Ext.R2 (e) plaint filed by the petitioner herself. He took me through the averments of paragraphs 4 and 5 of the plaint. Of course, learned counsel for petitioner would submit that the matter is WPC.22400/08 : 3 : pending consideration in two civil suits which are O.S.Nos.209/05 and 211/05 before the Munsiff Court, Kozhikode. According to the petitioner, no doubt, it is a case that having regard to the alternate proposals available which are from the posts situated nearer to the 3rd respondent's property, it is illegal on the part of the authority to sanction the route as permitted in Ext.P4. He would submit that actually the alleged public pathway belongs to the petitioner and only her relatives are permitted to pass through it and he also points out that the question is pending consideration before the civil court and when the matter is pending consideration before the civil court and when alternate routes are available which are situated nearer, it is clearly unwarranted on the part of the Magistrate by a cryptic order to grant permission as done, he complains. 5. The question which is to be considered by the Magistrate under section 16 of the Indian Telegraph Act when he considers a proposal by the party is necessarily as to WPC.22400/08 : 4 : whether the permission sought can be granted which is a question to be answered primarily keeping in mind the inconvenience and hardship caused to the parties. In this case, apparently the line has been permitted to be drawn on a pathway. Going by the averments in paragraphs 4 and 5 of Ext.R2(e) filed by the petitioner, it would appear that it is her case in the civil court that there is a private way and to the immediate east of the private way, there is a public way having a width of nearly 3 feet. Therefore, it is not as if the case of the petitioner in the civil court relates to the entire extent of the property which can be said to be comprised in the way. It is pointed out by the 2nd respondent that the electric posts have been put up and line has been drawn on an alignment which is running on the eastern most corner of the pathway. I would think that having regard to the materials available in this case and the pleadings in paragraphs 4 and 5 of Ext.R2(e) plaint, it is not necessary for me to exercise the discretionary jurisdiction under Article 226 of the Constitution, WPC.22400/08 : 5 : even though the petitioner may be justified in contending that the Magistrate has not dealt with the matter as he should have in keeping with the dictum laid down in 1997 (2) KLT 979. In view of the facts made available to this court, I do not think it is necessary to remit it back for reconsideration. But, I hasten to observe that when the civil court takes O.S.Nos.209/05 and 211/05, the court will deal with the issues raised therein completely untrammeled by whatever is stated in Ext.P4 as also whatever is stated in this judgment. Subject to the same, writ petition is dismissed. Sd/- (K.M.JOSEPH, JUDGE) aks