Kerala High Court
Sulochana Sarasakshan vs District Collector on 4 February, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941
WP(C).NO.23166 OF 2019(U)
PETITIONERS:
1 SULOCHANA SARASAKSHAN,
AGED 55 YEARS
W/O. SARASAKSHAN, VALIYAVEETTIL HOUSE,
MALAYINCHY P.O, UDUMBANNUR (VIA), IDUKKI DISTRICT.
2 M.R. NARAYANAN,
S/O. RAMAN, MEDAMPLAKKIL HOUSE, METHOTTY,
KOOVAKANDAM P.O, VELLAYAMATTAM,
THODUPUZHA (VIA), IDUKKI DISTRICT.
BY ADVS.
DR.GEORGE ABRAHAM
SHRI.JOBY D JOSEPH
RESPONDENTS:
1 DISTRICT COLLECTOR,
COLLECTORATE, IDUKKI-685603.
2 ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, IDUKKI-685603.
3 ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB-DIVISION,
KERALA STATE ELECTRICITY BOARD LTD,
THODUPUZHA (EAST) P.O, IDUKKI DISTRICT-685585.
4 ASSISTANT ENGINEER, ELECTRICAL SECTION,
KERALA STATE ELECTRICITY BOARD LTD,
ELECTRICAL SECTION, ALAKODE, THODUPUZHA(EAST) P.O,
IDUKKI DISTRICT 685585.
5 SRI. VARKEY JOSEPH,
NADUVILEPARAMBIL HOUSE, METHOTTY,
KOOVAKANDAMM P.O, VELLIYAMATTAM (VIA),
THODUPUZHA, IDUKKI DISTRICT-695588.
WP(C).No.23166 OF 2019(U) 2
R1-2 BY GOVERNMENT PLEADER SRI RON BASTIAN
R3-4 BY SRI.ARUNKUMAR A., SC, KSEB
R5 BY ADV. SMT.M.CHANDRALEKHA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.23166 OF 2019(U) 3
JUDGMENT
Under challenge in this petition is the order passed by the Additional District Magistrate, Idukki under Section 16(1) of the Indian Telegraph Act, 1885 by which permission was granted to the 4 th respondent to provide service connection to the residential home of the 5th respondent using the electric post situated in the property of the petitioners.
2. It is the case of the petitioners that they have been granted title for forest land under occupation under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The 5 th respondent is their neighbour and his residential home is situated on the western side of the property of the petitioners. The 5th respondent applied for a service connection under the 'Complete Electrification Scheme' of the Government. On inspection of the property, it was found that an electric post was situated in the property of the 1 st petitioner and drawing of the line from the said post was economically and technically, the most feasible. When this fact came to the knowledge of the petitioners they raised WP(C).No.23166 OF 2019(U) 4 objection contending that drawing of line in the alignment proposed would cause incalculable loss to them. The petitioners resisted the drawing of the line and filed a representation before the respondents 1 and 4. The matter was accordingly referred to the 1 st respondent by the 4th respondent. The petitioners appeared before the 2 nd respondent and produced Ext.P6 sketch showing the proposed and alternate route. The 2nd respondent obtained reports from the revenue authorities and also from the KSEB. By Exhibit P7 order, the 2nd respondent granted permission to the 4th respondent to draw the line along the route proposed by them.
3. According to the petitioners, the order passed by the 2 nd respondent cannot be sustained as he has not applied his mind to the facts of the case. It is contended that if the line is shifted about 20 metres towards the west from the post and parallel to the proposed line, the service line can be taken through the boundary of the property which would cause the least inconvenience. In the alternative, it is suggested that a weather proof line be drawn from the post to the property of the 5th respondent so that the inconvenience which is likely to be caused could be avoided. However none of these aspects were taken note of by the 2nd respondent.
WP(C).No.23166 OF 2019(U) 5
4. The respondents 3 and 4 have filed a counter affidavit. It is contended that the order passed by the 2 nd respondent after considering all alternatives is a reasoned order and it does not warrant any interference. They also highlighted the difficulties in choosing the alternative route due to the difficult terrain in the area. The route proposed is the most feasible one and the same was seconded by the revenue authorities, is the contention. Reliance was also placed on sketch prepared by the Assistant Engineer to substantiate the above fact. Furthermore, large trees and other obstacles are situated therein which makes the drawing of the line even more difficult. Insofar as drawing of a weather proof line is concerned, it is contended that maximum distance to which a weather proof line can be drawn is 35 metres and further, the passing of a service wire across the plot would be an impediment.
5. The 5th respondent has filed a counter affidavit wherein it is contended that he is a member of a scheduled tribe and the property is situated in a tribal area. For upliftment of tribals, property was allotted by the Government and a small plot was allotted to him. He has four minor children and all of them are studying. The connection has been provided to him under the complete electrification programme of the WP(C).No.23166 OF 2019(U) 6 Government. It is further contended that the properties are lying at an incline and the alignment proposed by the 4 th respondent is the ideal one causing the least amount of inconvenience.
6. I have heard Sri.Joby Daniel Joseph, the learned counsel appearing for the petitioners, Sri. Sudheer Ganeshkumar, the learned Standing Counsel appearing for the respondents 3 and 4 and Smt. M. Chandralekha, the learned counsel appearing for the 5 th respondent. I have also gone through the sketches produced by both sides and also the reports submitted before the 2 nd respondent by the 4th respondent as well as the revenue officers.
7. Admittedly, a post is situated in the property of the 1 st petitioner and it is situated at a distance of about 40 metres from the residential home of the 5th respondent. The alternative route suggested is through the boundary of the property which according to the petitioners is at a distance of about 20 metres towards the west. I find from the report of the KSEB officers and also the revenue officers that the location is a forest area and the terrain is inclined. It appears that if the line is shifted towards the west, the distance of the overhead line would increase by about 80 metres and two additional posts will have to be erected. I also find that the 2 nd respondent took note of the WP(C).No.23166 OF 2019(U) 7 fact that the route proposed by the 4 th respondent is technically and economically the most feasible one.
8. In Valsamma Thomas v. Additional District Magistrate1, a Division Bench of this Court after surveying the entire law on the point as well as the provisions in the statute, reiterated the scope of interference against an order passed by the District Magistrate under Section 16(1) of the Telegraph Act. In paragraph Nos. 11 and 12 of the report it was observed thus:
"11. It is also clear from the authorities and judicial decisions that judicial review is directed not against the decision, but is confined to the examination of the decision making process. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made.
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 1 [1997 (2) KLT 979] WP(C).No.23166 OF 2019(U) 8 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.
9. As held by this Court in Indu Chandran and Ors. v. KSEB, Thiruvananthapuram2, this Court will be justified in interfering with the discretion exercised by the District Magistrate only in cases of established illegality, irrationality, procedural impropriety or where the decision is found to be unreasonable in the wednesbury 2 (2017 (3) KLT 420) WP(C).No.23166 OF 2019(U) 9 sense or vitiated by malafides, either factual or legal. In the instant case, I am unable to find any infirmities in the order which is a considered one passed after hearing all sides. There is no allegation of malafides nor can it be said that the order is perverse. The decision of the District Magistrate is clearly based on the technical opinion as regards feasibility given by the 4 th respondent and the report of the revenue officials.
In that view of the matter, no interference is warranted. This Writ Petition will stand dismissed. There will be no order as to costs.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE NS WP(C).No.23166 OF 2019(U) 10 APPENDIX PETITIONER(S) EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TITLE FOR THE FOREST LAND BELONGS TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE TITLE OF THE FOREST LAND.
EXHIBIT P3 TRUE COPY OF THE PETITION FILED BY THE 1ST PETITIONER DATED 17.2.2018.
EXHIBIT P4 TRUE COPY OF THE PETITION FILED BY THE 1ST PETITIONER BEFORE THE DISTRICT COLLECTOR.
EXHIBIT P5 TRUE COPY OF THE NOTICE DATED
24.06.2019 ISSUED TO THE PETITIONERS.
EXHIBIT P6 TRUE COPY OF THE SKETCH PRODUCED
BEFORE THE 2ND RESPONDENT BY THE
PETITIONERS DURING THE HEARING.
EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE
2ND RESPONDENT UNDER SECTION 16(1) OF
THE INDIAN TELEGRAPH ACT 1885.
RESPONDENT(S) EXHIBITS:
EXHIBIT R3(a) A TRUE COPY OF THE REQUISITION
FORWARDED TO THE 2ND RESPONDENT DATED
17.02.2017.
EXHIBIT R3(b) A TRUE COPY OF THE LETTER
NO.ESDTE/DB/17-18/687 DATED
23.03.2018.