IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 19364 of 2010(U) -------------------------- PETITIONER(S): --------------- 1. KUNJIMOHAMMED PARAYIL,S/O.ENDEENKUTTY RESIDING AT PARAYIL HOUSE, CHERAVANNUR VALAVANNOOR,TIRUR TALUK,MALAPPURAM DISTRICT. 2. MOHAMMED M.C, CHEMBAYITHODI HOUSE, KUNIYIL KEEZHUPARAMBU PO, ARECODE. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): --------------- 1. POWER GRID CORPORATION OF INDIA LTD REPRESENTED BY ITS DEPUTY MANAGER, TLC, SOUTHERN REGION TRANSMISSION SYSTEM-II, AREA OFFICE, CHEMRAKKATTUR, PO AREACODE, MALAPPURAM DISTRICT. 2. THE DEPUTY MANAGER, POWER GRID CORPORATION OF INDIA LTD TLC, SOUTHERN REGION TRANSMISSION SYSTEM-II, AREA OFFICE, CHEMRAKKATTUR, PO AREACODE,MALAPPURAM DISTRICT. 3. THE SECRETARY , KEEZHUPARAMBA GRAMA PANCHAYATH, AREACODE,MALAPPURAM. 4. THE DISTRICT MAGISTRATE MALAPPURAM. 5. THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM. ADV. SRI.MILLU DANDAPANI FOR R1,2 SRI.P.P.THAJUDEEN FOR R5 BY SR.GOVT. PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.19364 of 2010-U ---------------------------- Dated this the 26th day of July, 2010. J U D G M E N T The petitioners are challenging Ext.P13 order passed by the District Magistrate, whereby 400 KV electric line has been caused to be drawn through the properties belonging to the petitioners taking deviation of the route, instead of drawing the line directly from the point ‘B to D’ of Ext.P4 sketch produced before this Court. The specific case of the petitioner is that, the line should have been drawn directly from the point ‘B to D’ instead of taking deviation of the route by drawing the same through C and then to D, resulting in more loss and hardships. 2. The petitioners had approached this Court earlier by filing W.P.(C) No.13647 of 2010. After hearing both the sides, Ext.P11 judgment was passed by this Court on 23.4.2010 directing the fourth respondent to consider and finalise the matter, after considering the objections of the petitioners, other property owners concerned and also the objections of the first and second respondents. It was pursuant to Ext.P11, Ext.P12 notice was issued as to the hearing scheduled on 14.5.2010. The case of the W.P(C) No.19364 of 2010-U 2 petitioners is that, on 14.5.2010, the matter was heard by the Additional District Magistrate, who found that it was necessary to conduct a spot inspection and accordingly, the matter was adjourned. Thereafter, the spot inspection was conducted by the Deputy Collector (LR) on 30.5.2010 and later, the impugned order was passed by the District Magistrate himself on 16.6.2010. It is contended that the order was passed without considering the objections preferred by the petitioners, which hence is under challenge in this Writ Petition. 3. The first respondent has filed a statement pointing out the sequence of events and the manner in which the proceedings were finalized. The first and second respondents have filed a counter affidavit asserting that various aspects, particularly as to the technical feasibility. It is also stated that the route was notified much earlier by the ‘gazette notification’ and it was only after considering the various circumstances as narrated in Ext.P6, that the matter was finalized. A detailed sketch has been produced as Annexure R1(d) (though there is yet another document produced and marked as ‘Ext.R1(d)’ along with the counter affidavit dated W.P(C) No.19364 of 2010-U 3 27.6.2010) showing the route map and alignment, along with Additional counter affidavit dated 19.7.2010. Referring to the contents of the said sketch, the learned standing counsel submits that, the line could not have been drawn from the point ‘B to D’ due to many a reason, including the fact that it was not technically feasible; as it was to cross through heavily populated area. It is also stated that, from the point ‘B’, the line was caused to be drawn and to reach directly to the point ‘94/0’ as shown in the sketch. It was originally to pass through a school premises and also a residential colony, which was strongly objected by the nearly inhabitants and it was accordingly that the line was decided to be taken to the point ‘C’ and then to point ‘D’ taking a deviated route. Out of the above deviated route having a total length of 1135 meters, the alignment B-C-D which is having 830 meters of length, is routed mostly along the paddy fields, avoiding the housing area to the possible extent. 4. The feasibility aspect in respect of route ‘B to D’ is stated in the following line given in para 4 of the additional counter affidavit. “i) Large number of Dwelling Houses, more than 20 Nos., are falling in the alignment. By providing additional Towers in order to avoid the above structures was also taken into W.P(C) No.19364 of 2010-U 4 account and the same was not possible due to paucity of vacant spaces. ii) Out of a total length of 910 meters between 'B' to 'D' more than 800 meters traverse rich cultivated land/plantations. Damages would have been more in adopting the above direct alignment. iii) Hardly around 100 metres of Paddy Field only could be utilized if Line is drawn directly from points 'B' to 'D'.” The route suggested by the Power Grid Corporation from B-C-D is sought to be sustained by the fourth respondent, in the statement filed, stating that the objections raised by the petitioners were considered and that the fourth respondent found that there was no other alternate route so as to draw the line. However, going by the materials on record, it is revealed that the petitioners had requested to avoid drawing the line through their property as projected in Exts.P5 and P7 seeking the authorities concerned to consider the feasibility of the alternate route. 5. It is stated in Ext.P13 that the petitioners had turned up before the fourth respondent and had raised objections pointing out the alternate route and it was in the said circumstances, that the matter was sought to be intercepted further, as observed in para 4 and 5 of Ext.P13, which are extracted below: “In this context some property owners submitted petitions stating that if the line is drawn through the W.P(C) No.19364 of 2010-U 5 proposed route, it will affect adversely the Keezhuparampa Govt. V.H.S.S. and its proposed expansion works as well as populated colonies and other public offices under the Grama Panchayath and also proposed an alternate route said to be more convenient. Copy of the petition of the residents were given to the Power Grid authorities to get remarks on the alternate route proposed after examining the objections raised by them. Considering the Objections of the residents, Deputy Collector (LR) was ordered to inspect the proposed route and to report whether anyalternate route is available as more convenient than the proposed one. Deputy Collector (LR) submitted a report after conducting site inspection. As per the report the site was inspected in the presence of Power Grind authrorities and reported the route proposed to draw shall not affect the residential buildings and the GVHSS, Keezhuparamba, the school compound is 60 metrs distant from the proposed route and the line will pass only through the property of the petitioners in W.P(C) and also reported that there is no other alternate route existing as feasible more over the 90% of the work in the proposed route is completed and the lay of Areakode-Kannoor 220 KV line is also causing difficulties to change the proposed route. The report concluded that there is no alternate route available as more feasible than the proposed one. From the above, it is clear that the basis for the impugned order is a ‘report’ submitted by the Deputy Collector (LR). The inspection report conducted by the Deputy Collector (LR) is produced and marked as Ext.R4(a), along with the statement filed by the fourth respondent. Nothing is discernible from Ext.R4(a), to W.P(C) No.19364 of 2010-U 6 infer that the said inspection was conducted by the authorities concerned with notice to the persons like the petitioners. Anyhow, what is observed therein is that the disputed property, which was inspected by the Deputy Collector (LR), was in respect of the area between ‘’ 92A/0 to 93/0 ’’ ; referring to which, it has been observed that the construction of the tower at the points 92A/0 and 93/0 have been completed and further that the owners of the property where the tower is being constructed have given consent. Based on the inspection of the said area, it is reported in Ext.R4(a) that, if the lines were drawn through the above portion, there would be no chance to have the line crossed over the residential buildings and that the lines can keep a distance of 60 meters from the compound wall of the school. It is also stated that, the damage if at all to be caused by drawing the line in the above route, is only for some yielding or other tress and that no damage will be caused in respect of the residential buildings including that of the petitioners. 6. The basic challenge from the part of the petitioners is that the line could have been drawn directly from the point ‘B to D’ as shown in Ext.R1(d) sketch and that there was absolutely no necessity to have the line to be deviated from the point ‘B to C’ and W.P(C) No.19364 of 2010-U 7 then to ‘D’. The factual position as to the scope and feasibility of drawing the line from the point ‘B’ to ‘D’ has not been discussed or analysed by the fourth respondent while passing the impugned order. The contents of Ext.R4(a) report clearly reveal that, the site inspected by the Deputy Collector is only between the points ‘92A/0 ’ and ‘ 93/0 ’ , which is much after the point ‘D’. In other words, it is not with respect to any inspection between ‘ B and D ’ and the fact remains that the feasibility of drawing line directly from ‘B to D’ was not inspected by the Deputy Collector (LR) and so also not considered by the District Magistrate as well. 7. The learned standing counsel appearing for the respondents 1 and 2 submits that the objection raised from the part of the petitioners (as borne by Ext.P5 and P7 in Ext.P11 judgment) were not pertaining to the feasibility aspect between the points ‘B to D’ and as such, the impugned order does not call for any interference. The said submission does not appear to be palatable, due to many a reason; more so when, there is an observation in para 3 of the very same verdict (Ext.P11) that all the objections are to be considered by the fourth respondent under Section 10 of the W.P(C) No.19364 of 2010-U 8 Indian Telegraph Act. Further, the objections raised before the concerned authority at the time of hearing is not discernible from Ext.P13. In other words, whether the line could have been drawn from ‘B to D’ is not considered by any of the authorities concerned, which was also necessary, to decide the feasibility aspect pointed out from the part of the respondents 1 and 2, with reference to the comparative merits/de-merits of the different routes. 8. True, this Court is not to examine the correctness of the decision/order or the technical aspects involved; but the decision making process, as held by this Court in Ajith K.N V State of Kerala 2010(2) KHC 895. Based on the very same reasoning given in the said verdict this Court finds that Ext.P13 order has been passed on the basis of Ext.R4(a) report of the Deputy Collector, which is without any regard to the ‘direct’ alternate route stated as available between ‘B to D’ and this being the position, the proceedings finalised by the fourth respondent are liable to be re-considered, after considering the feasibility of the said route as well. 9. In the above facts and circumstances, Ext.P13 is set aside. The fourth respondent is directed to re-consider the matter after conducting a site inspection with specific reference to the W.P(C) No.19364 of 2010-U 9 route suggested directly between point ‘B to D’ of Ext.R1(d) sketch as aforesaid and pass appropriate orders giving an opportunity of hearing to all concerned. The proceedings as above shall be finalised as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. P.R.RAMACHANDRA MENON, JUDGE ab W.P(C) No.19364 of 2010-U 10