IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 WP(C).No. 21586 of 2009(P) -------------------------- PETITIONER(S): --------------- MOHANADASAN,S/O.C.K.NARAYANAN, CHELAPARA HOUSE,CHERUMKULAM, KARIMBANKUNNU,THENKARA P.O., MANARGHAT,PALAKKAD. BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA SRI.A.S.BRIJESH RESPONDENT(S): --------------- 1. ADDITIONAL DISTRICT MAGISTRATE,PALAKKAD. 2. KERALA STATE ELECTRICITY BOARD, REP.BY ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION,MANARGHAT. 3. BALAKRISHNAN, ASSISTANT ENGINEER, ELECTRICAL SUB DIVISION, MANARGHAT. 4. NARAYANAN,S/O.THANKAPPAN, KANKKATH HOUSE,THENKARA P.O.,MANNARGHAT. ADV. SRI.RAJESH NAMBIAR FOR R4 SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 & 2 GOVT. PLEADER SRI. K.S. MOHAMMED HASHIM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON 26/10/2009 DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 21586/2009 ------------------------------------------------------------------ EXT.P1 TRUE COPY OF APPLICATION DT. 20-4-2009. EXT.P2 TRUE COPY OF REPORT DT. 27-5-2008. EXT.P3 OBJECTION DT. 25-5-2009. EXT.P4 OBJECTION FILED BEFORE R1 DT. 25-5-2009. EXT.P5 PETITION FOR RE-INSPECTION DT. 25-5-2009. EXT.P6 ORDER DT. 15-7-2009. EXT.P7 REPORT OF VILLAGE OFFICER DT. 16-7-2008. EXT.P8 REPORT OF RDO DT. 28-8-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 21586 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 26th October, 2009. J U D G M E N T The petitioner is the owner of a property, through which, by Ext. P6 order, the 1st respondent has permitted the 2nd respondent to draw electric line to give electricity connection to the 4th respondent, in exercise of powers conferred on the 1st respondent under Section 16 (1) of the Indian Telegraph Act. The petitioner is challenging that order in this writ petition. 2. The contention of the petitioner is that there is a less expensive and more feasible alternate route, without considering which the 1st respondent had passed Ext. P6 order, permitting drawing of electric lines through the petitioner's property, which would cause heavy damage to the trees standing in the petitioner's property. According to the petitioner, under Section 10(d) of the Indian Telegraph Act, the Board has to ensure that the line is drawn “causing as little damage as possible”, which has not been complied in this case. The petitioner avers that in order to draw lines through the petitioner's property, many trees belonging to the petitioner have to be cut causing heavy damage to the petitioner, whereas if the line is drawn through the alternate route, no trees would have to be cut. It is stated in the writ petition that for drawing lines though the petitioner's property, overhead lines for 125 to 130 meters have to be drawn, whereas through the alternate route the distance is only 57 meters. The petitioner alleges that the 2nd respondent has applied to the District Magistrate for permission to draw lines through the petitioner's property at the behest of the 3rd respondent, who is an Assistant Engineer of the Kerala State Electricity Board and a relative of the 4th respondent. The petitioner further contends that the 1st respondent has not given reasons for rejecting the alternate route and has not passed Ext. P6 in accordance with Section 10(d) of the Act. W.P.C. No. 21586/09 -: 2 :- He relies on the decision of this Court in Krishnan Nair v. K.S.E.B., 1998(2) KLT S.N. 44 (Case No. 53) regarding the necessity to give reasons while passing orders under Section 16(1) of the Indian Telegraph Act. 3. The 2nd respondent has filed a counter affidavit in which it is stated that the 3rd respondent has no blood relation with the 4th respondent and that the service connection to the petitioner was effected in 2004 while the 3rd respondent was holding charge of the jurisdictional Assistant Engineer. According to him, the alternate route crosses the property of the owner of that property for which consent is not obtained. It is further contended that although for drawing line through the petitioner's property more expenses have to be incurred, since the line is to be drawn through a pathway, the same is more feasible. 4. The petitioner has filed a reply affidavit in which the existence of the pathway is seriously disputed. In the writ petition also, he contends that the alleged pathway is a 'water way' dug by him for irrigating his property and to allow rain water to drain away. He reiterates that the more feasible route is the alternate one suggested by the petitioner. 5. I have considered the contentions of both sides in detail. 6. At the outset, I note that the alternate route suggested by the petitioner is through the property of one Sri. Rajagopalan, who was a party before the Additional District Magistrate. That route has been considered by the A.D.M also. Despite the same, the petitioner has not chosen to make the said Sri. Rajagopalan as a party to this writ petition. Without hearing him, drawing of electric lines through his property cannot even be considered. For that reason alone, the petitioner's contention regarding the alternate route cannot be W.P.C. No. 21586/09 -: 3 :- entertained. 7. I also do not find merit in the contention of the petitioner that the ADM has not given reasons for rejecting the alternate route. The relevant portion of Ext. P 6 reads thus: “During the course of trial the petitioner argued that the proposed route is through the pathway to the residence of the Prospective Consumer and the alternate route is through the middle of the property of Sri. Rajagopalan, the respondent . The counsel for Sri. Mohandas, the respondent argued that the facts reported by the Village Officer, Mannarkkad II and the petitioner are not correct and the Court may visit the site to ascertain the fact before passing any order in this case. The counsel for Sri. Rajagopalan the respondent argued that the alternate route is proposed through middle of the coconut plantation and it would be much danger and hence the route through the pathway may be considered. The counsel for the prospective consumer argued that the line may be drawn through the pathway by the side of the 'Water Chal' so that loss could be minimised and the said pathway is used to reach the residence of the Prospective Consumer. In this counter affidavit, the Court verified the report of the Revenue Divisional Officer, Ottappalam in this office file No. PGR-1 – 2008/55063/9. The Revenue Divisional Officer, Ottappalam has reported that it is ascertained on enquiry & hearing conducted on the complaint preferred by Sri. Narayanan, S/o. Thankappan that there is no obstruction existing on the pathway and no further action is seen required. Further reported that the matter of drawal of electric line is to be considered by the office of the District Collector as per the existing rules. From the above said facts, it is clear that the issue to be decided in the case is whether there is any serious hardship to Sri Mohandas, the respondent, if the electric line is drawn through the pathway, the route proposed by the petitioner. O R D E R Taking into consideration of all the aspects involved in the case, I have come to the conclusion that there is not much hardship to Sri. Mohandas, S/o. Narayanan, Chelappara House, Thenkara, Mannarkkad, Palakkad the respondent for providing electric connection to the residence of Sri. Narayanan the prospective consumer by drawing the electrical line through the W.P.C. No. 21586/09 -: 4 :- pathway, the route proposed by the petitioner and it will promote better relationship between the parties. In the circumstances, the Assistant Executive Engineer, Electrical Sub Division, KSEB, Mannarkad, Palakkad is permitted to exercise the powers conferred under Section 10 of the Indian Telegraph Act, 1885, to draw the electric line through the pathway, the route proposed by the petitioner and the topo sketch filed by the petitioner for providing the electric connection to the residence of Sri. Narayanan, S/o. Thankappan Kankkath House, Thenkara, Mannarkkad, Palakkad, the prospective consumer for domestic purpose. The petitioner should ensure minimum inconvenience to the respondents while drawing the electric line. If any loss has been caused to the respondents by drawing the line, the respondent can move before the appellate authority under Section 16(4) of Indian Telegraph Act, 1885.” (Underlining supplied) The ADM may not have given reasons as in a judicial order. But, his reasoning can certainly be inferred therefrom to the effect that since the alternate route would cross Sri. Rajagopalan's property and since the proposed line passes through a pathway by the side of a 'water chal', the latter is to be preferred. Coming from a person who is not a judicial officer, I cannot find fault with the same. On the other hand, compared to the many other similar orders of District Magistrates I have come across sitting in this jurisdiction, I find that this is a far better order than many others. Therefore, I reject the contention of the petitioner that the ADM has not given reasons for rejecting the alternate route. The decision relied on by the petitioner only says that the District Magistrate should state in his order why he is accepting one proposal and rejecting the other. In view of my above finding, the application of that judgment does not arise. 8. The scope of the jurisdiction of this Court while considering challenge against orders of the District Magistrate under Section 16 (1) of the Indian Telegraph Act is well defined by the decision of a Division Bench of this Court in Valsamma Thomas v. Additional District Magistrate, 1997 (2) KLT 979, wherein this Court has held W.P.C. No. 21586/09 -: 5 :- thus: “12. Thus, on a review of the authorities of this question, we come to the following conclusions: (1) The District Magistrate has to exercise his discretion judicially. (2) He has to pass the order under S. 16(1) of the Telegraph Act, after hearing the parties and after taking such evidence as is required with regard to the objections raised. (3) The order passed by the Court should be a speaking order. (4) The order should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same. (5) The order should also reflect the materials relied on by the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by malafides this Court will not be justified in interfering with such orders. This Court will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters.” Going by the same, I am satisfied that Ext. P6 satisfies substantially all the five para meters stipulated by the Division Bench. 9. Of course, the petitioner would strongly dispute that there is a pathway. But, I find that there is a dispute regarding the existence of a pathway pending before the Revenue Divisional Office. I am of opinion that the existence or otherwise of a pathway is not much crucial for this case insofar as the petitioner himself admits that there is a water way constructed by the petitioner. In paragraph 1 of the writ petition, the petitioner states thus: “1. The petitioner is the owner of 73 cents of property in which W.P.C. No. 21586/09 -: 6 :- he resides with his family. He being an industrious agriculturist has planted coconut, arecanut tamarind, mango and jack fruit trees, which yield him necessary fruits and nuts for his livelihood. Manarghat is a hilly area with topography of ups and downs. It also has a heavy rainfall. The petitioner had therefore dug a water channel two to three deep along his far end of the property as well as through the middle of his property to allow the excess water to drain off during monsoon as well as to collect use water for irrigation during summer. This has been done at his own expense. Apart from that on the inner side of the water channel dug near the house he has also made fencing so that cattle, goats that graze in the vicinity or children do not fall into it. The agricultural operations in the land are the main source of income and livelihood of the petitioner. On the eastern side of the property lies the main road. The water channel is dug out from the eastern corner towards west through the extreme south portion of the property along its southern boundary for about 70 meters. Then it runs towards north for about 25 meters and then turns again towards the west till the extreme end of the property where on both sides lies the petitioners property.” (underlining supplied) Therefore, the petitioner admits that there is a 'water way' enclosed by fencing made by the petitioner. Whether there is a pathway or not, if the line is drawn through the 'water way' there cannot be any serious inconvenience or damage caused to the petitioner other than the loss of some trees, for which the petitioner is entitled to compensation. 10. On the other hand, from the two sketches produced as Ext. P1 and as annexure to Ext. P2, it is abundantly clear that by drawing electric lines through Sri Rajagopalan's property, his property would be cut into two. The 'damage' mentioned in Section 10(d) is not merely damage to trees. The District Magistrate has to take into account all kinds of damage, including damage which may be caused by the electric line cutting a property into two. The District Magistrate has to assess comparative damage and choose the route with less damage. The petitioner admits that he himself has dug a 'water way' in his property along which only line is now proposed to W.P.C. No. 21586/09 -: 7 :- be drawn. He has also enclosed the water way by fencing. Drawing of line through the water way would certainly cause only less damage then drawing line cutting the property of Sri. Rajagopalan into two. The ADM's conclusion that the said route would not cause much hardship to the petitioner, cannot be held to be perverse, by any standards. In this connection, I also note that in Ext. P1 it is stated that drawing line through the petitioner's property involves construction of overhead line for 101 meters with 5 poles and weather proof line for 15 meters. It is also stated therein that drawing line through the alternate route involves construction of overhead line for 60 meters with 2 poles and weather proof line for 20 meters. Although the petitioner has tried to impute mala fides by bringing in the 3rd respondent on the premise that he is related to the 4th respondent, the same has failed to take off since that is not enough to show mala fides on the part of the District Magistrate. I am unable to find that the proceedings before the ADM are vitiated by mala fides. The petitioner having failed to prove the two grounds mentioned in Valsamma Thomas's case to challenge Ext. P6, he cannot succeed in this writ petition. Accordingly, the writ petition is dismissed. But, I make it clear that Ext. P6 or this judgment shall not be construed as having accepted or rejected the contention that there is a pathway through the petitioner's property, which the parties have to resolve by resort to proceedings before the civil court or other forum as permitted by law. Sd/- S. Siri Jagan, Judge. Tds/ W.P.C. No. 21586/09 -: 8 :-