IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 32983 of 2008(B) -------------------------- PETITIONER(S): ------------------ C.K.MOIDEEN KUTTY, AGED 63 YEARS, S/O.MARAKKAR,CHELAKKATTIL HOUSE, AGALAI.P.O, MANNARKKADU, PALAKKAD DISTRICT-678581. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): ------------------- 1. ADDITIONAL DISTRICT MAGISTRATE, PALAKKAD. 2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, AGALI, PALAKKAD DISTRICT. 3. SR.P.C.IMMANUEL @ BABY, PULIMPARAMBIL HOUSE, OPPOSTIE P.D.C.BANK, AGALI, PALAKKAD DISTRICT-678581. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R2 SMT.P.K.RADHIKA FOR R3 GOVT.PLEADER SRI.MOHAMMED NIHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.32983/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE PHOTOSTAT COPY OF THE APPLICATION DT 6.8.2008 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE ORDER DATED 5.11.2008 BEARING NO.D3.2008/41161/9/KDIS PASSED BY THE 1ST RESPONDENT. EXT.P3: TRUE COPY OF THE POST CARD DATED 8.8.2008 SENT TO THE PETITIONER BY THE SUB ENGINEER IN CHARGE, ELECTRICAL SECTION, AGALI EXT.P4: TRUE COPY OF THE ANSWERS GIVEN BY THE PUBLIC INFORMATION OFFICER OF K.S.E.B.AGALI DT 4.2.2008 TO THE PETITIONER. EXT.P5: TRUE COPY OF THE ANSWERS GIVEN TOT HE PETITIONER BY THE PUBLIC INFORMATION OFFICER OF AHADS DT 31.1.2009 AND BEARING NO.A/E/4825/05. EXT.P6: PHOTOGRAPHS OF THE LINE DRAWN BY THE KSEB AND THE DISPUTED LAND. EXTS. OF R3 EXT.R3(a): A TRUE COPY OF THE OBJECTION DT 2.9.2008. EXT.R3(b): A TRUE COPY OF THE ADDITIONAL STATEMENT DT 15.10.08. EXT.R3(c): A PHOTOSTAT COPY OF THE PHOTOGRAPH OF THE SAID MOTOR SHED. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 32983 OF 2008 (B) ===================== Dated this the 30th day of June, 2009 J U D G M E N T Petitioner owns 83 cents of land in Agali Village and to the north of that situates 55 cents of agricultural land owned by the 3rd respondent. According to the petitioner, the Attapadi Block Panchayat formulated a scheme called Vikasana Padhathi and the petitioner applied for a domestic connection under the said scheme. It is stated that his application was processed and the Electricity Board erected posts and drew the line upto 30 meters away from the petitioner's property. At that stage, the 3rd respondent submitted complaint, which is Ext.P1(3) in this writ petition to the effect that the line was attempted to be drawn through his property without obtaining his consent and that if the line is drawn, it will affect his beneficial enjoyment of the property. 2. Thereupon, the 2nd respondent filed Ext.P1 application before the 1st respondent invoking his powers under Section 16 of the Indian Telegraph Act with an averment that the line is proposed to be drawn through the canal side (pathway) to the WPC 32983/08 :2 : prospective consumer and that though he had approached the parties, he could not arrive at a consenses and therefore sought the intervention of the District Magistrate. He also produced Ext.P1(2) certificate issued by the Village Officer and also Ext.P1 (4) sketch showing the alignment of the line, along with Ext.P1. The District Magistrate issued notice to all concerned. The 3rd respondent entered appearance and filed objections. According to the 3rd respondent, the property is not a pathway or puramboke as claimed, but the property was included in the registered holding. It was contended that he was not the owner of the property and that the proceedings were without notice to the actual owner of the property. He also contended that through the property belonging to AVIP, the line could be drawn covering a shorter distance. 3. The Additional District Magistrate appears to have issued notice to the Village Officer, who also submitted a report along with the sketch. In the report, it was stated that there is a water chal on the western side of the land owned by the 3rd respondent and that the proposed electric line was through the side of this chal. It was stated that there is no puramboke land WPC 32983/08 :3 : existing in Survey No.1138 as per the village records and that the water chal mentioned is close to the western side of the plot belonging to the 3rd respondent. The existence of the pathway as claimed by the petitioner was also negatived in the report. However, it is reported that the petitioner had approached the Mannarkkad Court for establishing the pathway and getting electric connection. The Village Officer reported that the electric line could be drawn from the post erected in the nearby Attapadi Valley Irrigation Project Land. 4. When the parties were heard, the possibility of drawing the line through the AVIP land was considered and the Electricity Board expressed their willingness to draw the line subject to the permission of the AVIP and on the beneficiary remitting Rs.2,339/- for removing the existing post. It would appear that the petitioner declined to pay Rs.2,339/-. The matter was accordingly considered and Ext.P2 order has been passed rejecting the application made by the 2nd respondent as 1) the site is not clearly surveyed or any boundaries are established 2) the position of the post erected i.e., whether it is in the land owned by the State or owned by the 3rd respondent was not clear from the WPC 32983/08 :4 : statements filed and 3) that the alternate route passes through the land owned by the AVIP, which is less expensive, may be considered by the 2nd respondent. It is challenging this order the writ petition is filed. 5. Referring to the judgment rendered by this Court in Kunjulakshmi v. District Magistrate (1986 KLT 1320), counsel for the petitioner contended that the enquiry conducted by the District Magistrate in terms of Section 16 of the Act is purely ministerial in nature and that he has no jurisdiction to sit in appeal over the decision of the Board in choosing the alignment of the line. According to the counsel, in view of the above position, if the Board makes a proposal to the ADM, all that he is expected to do is to conduct enquiry with notice to the parties and remove obstructions, if any. On this basis, it is argued that the conclusion of the 1st respondent that the land was not surveyed and that the position of the post is not clear, are irrelevant. It is also argued that the direction to explore the possibility of drawing the line through the alternate route is also beyond his jurisdiction. 6. On the other hand, the learned Government Pleader points out that pursuant to the directions issued by the Additional WPC 32983/08 :5 : District Magistrate, the Village Officer conducted an enquiry and had given a report along with a sketch. It is stated that on his inspection, he could not identify the existence of any puramboke land. Therefore, the suggestion of the Village Officer was that the post erected was in private property. 7. The 3rd respondent on the other hand would submit that it was without any proper enquiry that the whole proposal was made. According to him, if the post is allowed to remain as such, it will affect the user of the property. It is stated that the AVIP authorities were willing to permit drawal of the line and that the Board had even estimated the cost involved and that it was only because the petitioner refused to remit the required expense that the said alternate proposal did not materialise. It is stated that at this stage, in order to avoid further controversy, the 3rd respondent is even willing to bear the expenses, provided the petitioner co-operates with the authorities of the Electricity Board in making necessary application to the AVIP authorities. The 3rd respondent also contends that the land in question is that of his wife and that the whole proceedings were without notice to the owner of the land. It is contended that there is no puramboke WPC 32983/08 :6 : land and that the alignment in question is exclusively through the property of his wife. 8. I have considered the submissions made by both sides. Enquiry conducted by the Additional District Magistrate is in exercise of the powers under Section 16 of the Act and his power is only in relation to the removal of the obstructions. This enquiry of course is a quasi judicial one and has to be completed taking all relevant issues into consideration and in compliance with the principles of natural justice. 9. In so far as this case is concerned, if the Village Officer's report is to be accepted, there is no puramboke and the line passes through the property of the wife of the 3rd respondent. When the 3rd respondent, whose wife is the owner of the affected land, opposes such a proposal and especially when he points out that an alternate route that is possible, the authorities are required to explore the feasibility of drawing the line through such an alternate route. 10. In so far as the facts of this case is concerned, the Electricity Board confirms the existence of the alternate route suggested by the 3rd respondent and the feasibility of the said WPC 32983/08 :7 : alignment and expressed its willingness to shift the line subject to obtaining permission of the AVIP authorities, provided the petitioner incurs an expenditure of Rs.2,339/-. However, a reading of Ext.P2, the order passed by the 1st respondent shows that the petitioner was unwilling to pay the same. In my view, this was an unreasonable stand of the petitioner. 11. Standing counsel for the Board during the hearing of this case, has confirmed the aforesaid stand taken by the Board and reiterates that they are still willing to explore the possibility of drawing the line through the AVIP property, provided the expenses are met by the parties concerned. 12. As already stated, when alternate route is available, reasonableness requires that the parties should co-operate to draw the line through the alternate route so that injury to anyone of the parties could be minimized or avoided to the extent available and is feasible. In this case in view of the admitted fact that alternate route is possible, I am not inclined to upset the view taken in Ext.P2 order passed by the District Magistrate, atleast for the present. 13. Having regard to the facts as above, the writ petition is WPC 32983/08 :8 : disposed of with the following directions. (1) That it will be open to the 2nd respondent to explore the possibility of drawing the line through the AVIP land as mentioned in Ext.P2 order. For seeking the permission of the AVIP authorities, if any application is required to be made by the petitioner, the petitioner shall also comply with such requirements on being informed of the same by the 2nd respondent. (2) If the AVIP authorities allows the 2nd respondent to draw the line as above, the 3rd respondent shall, as undertaken before this Court, bear the expenses involved for the same. If matters move as aforesaid, the line shall be shifted through the said alignment. (3) On the other hand, despite the petitioner making the application as above, the AVIP do not permit the line to be drawn as above, it will be open to the 2nd respondent to draw the line as originally proposed in Ext.P1 and the sketch enclosed along with Ext.P1 application made before the 1st respondent. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp