Kerala High Court
The Manager vs Collectorate on 24 March, 2014
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936
WP(C).No.38722 of 2010 (M)
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PETITIONER :
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THE MANAGER,
VILANJOOR DEVASWOM, KUTHIATHODU.P.O., CHERTHALA,
ALAPPUZHA DISTRICT.
BY ADV. SRI.B.PRAMOD
RESPONDENTS :
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1.COLLECTORATE, DISTRICT MAGISTRATE,
THE ADDITIONALALAPPUZHA.
2.ELECTRICAL
THE ASST.EXECUTIVE ENGINEER,
SUB DIVISION,
KERALA STATE ELECTRICITY BOARD, PATTANAKKAD,
CHERTHALA.
3.NH
MOHANAKRISHNAN, BHARTI INFRATEL LTD.,
BYE PASS, KUNDANNOOR, MARADU.P.O.
KOCHI.
4.KUTHIATHODU.P.O.,
DHANESAN, VILANJOOR MADOM,
CHERTHALA.
5.KODAMTHURUTHU,BHAVANAM,
LALITHA, ANANDA
KUTHIATHODU.P.O., CHERTHALA.
6.KODAMTHURUTHU, BHAVANAM,
ANANDAN, ANANDAKUTHIATHODU.P.O., CHERTHALA.
7.KODAMTHURUTHU,
SREELATHA, 'VAISAKHAM',
KUTHIATHODU.P.O., CHERTHALA.
8.KODAMTHURUTHU,ADIYODI NIKARTHU,
KRISHNANKUTTY,
KUTHIATHODU.P.O., CHERTHALA.
R3 BY ADV. SRI.PHILIP T.VARGHESE
R3 BY ADV. SRI.THOMAS T.VARGHESE
R3 BY ADV. SMT.ACHU SUBHA ABRAHAM
R7 BY ADV. SRI.J.OM PRAKASH
R2 BY ADV. SRI.K.M.SATHYANATHA MENON, SC, KSEB
BY SRI.P.P.THAJUDEEN, SC, K.S.E.B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.38722 of 2010 (M)
APPENDIX
PETITIONER'S EXHIBITS :-
EXHIBIT P1 : COPY OF THE NOTICE 22/3/2010 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P2 : COPY OF THE OBJECTION DTD.16/4/2010 SUBMITTED
BY THE PETITIONER.
EXHIBIT P3 : COPY OF THE ROUGH SKETCH SHOWING THE LOCATION
OF THE PROPERTIES CONCERNED.
EXHIBIT P4 : COPY OF THE NOTICE DTD.9/9/2010 ISSUED BY THE
1ST RESPONDENT.
EXHIBIT P5 : COPY OF THE ORDER DTD.25/11/2010 PASSED BY THE
1ST RESPONDENT.
RESPONDENTS' EXHIBIT :-
EXHIBIT R2(a) : A DETAILED SKETCH SHOWING THE ELECTRIC LINE
ROUTE AND ALTERNATIVE ROUTE SUGGESTED BY THE
K.S.E.BOARD.
True copy
P.A. To Judge
ANIL K.NARENDRAN, J.
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W.P.(C)No.38722 of 2010
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Dated this the 24th day of March, 2014
JUDGMENT
The writ petitioner is the Manager of the Vilanjoor Devaswom, Kuthiathode. He is also the Manager of Manjoor Siva Temple, Kuthiathode. He has approached this Court in this Writ Petition seeking a writ of certiorari to quash Ext.P5 order passed by the first respondent, the Addl. District Magistrate, Alappuzha, in exercise of his powers under Section 16(1) of the Telegraph Act, 1885.
2. The third respondent, who is an officer of a telecom tower infrastructure company, approached the second respondent, the concerned Asst. Executive Engineer of the Kerala State Electricity Board (KSEB), for electric supply to their telecommunication tower within the area of the Electrical Section, Kuthiathode. As the area is electrified through a single-phase overhead line the second respondent found it necessary to convert the said line to a three-phase overhead W.P.(C)No.38722 of 2010 2 line in order to give electric supply to the third respondent's premises. But, such conversion was objected by the writ petitioner and other land owners including respondents 4 to 8. In such circumstances, the second respondent approached the first respondent under Section 16(1) of the Telegraph Act, 1885, seeking permission to draw the overhead line as proposed.
3. Pursuant to the said request, the first respondent issued Ext.P1 notice to the writ petitioner and also to other land owners including respondents 4 to 8. On receipt of the said notice the writ petitioner submitted Ext.P2 objection raising various contentions. Ext.P3 is the rough sketch prepared by the writ petitioner showing the routes proposed by the KSEB and also the alternate routes suggested by him. After issuing Ext.P4 notice, the first respondent conducted site inspection and passed Ext.P5 order after hearing the affected parties. By the said order, the second respondent has been permitted to draw electric line through the route ABCDECI, W.P.(C)No.38722 of 2010 3 which is one of the two routes originally proposed by the second respondent. It is aggrieved by the said order the writ petitioner is before this Court in this Writ Petition.
4. By order dated 28.12.2010 this Court has ordered maintenance of status quo, if as on 28.12.2010 electricity line has not been drawn through the land belonging to Vilanjoor Devaswom pursuant to Ext.P5 order passed by the first respondent.
5. A counter affidavit has been filed by the second respondent contending that the route permitted in Ext.P5 order is the most feasible and shortest route, which causes least inconvenience to the writ petitioner. The two alternate routes suggested by the writ petitioner are not feasible as the route PST passes through the middle of the compound of Kodamthuruthu Primary Health Centre and the other route PQR is through thick vegetation and passes near two residential buildings. The said routes are lengthy and consent of the property owners are not obtained. A detailed sketch W.P.(C)No.38722 of 2010 4 showing the route permitted by the first respondent in Ext.P5 and the alternate routes proposed by the writ petitioner and the second respondent is produced as Ext.R2(a) along with the counter affidavit. The seventh respondent has also filed a counter affidavit supporting the findings in Ext.P5 order passed by the first respondent.
6. I heard the arguments of the learned counsel for the writ petitioner, the learned Senior Government Pleader appearing for the first respondent, the learned Standing Counsel for the KSEB, the learned counsel for the third respondent and also the learned counsel for the seventh respondent.
7. The learned counsel for the writ petitioner contended that, if line is drawn through the Devaswom property irreparable hardship and inconvenience would be caused to the temple, especially in conducting rituals and festivals. The interest of public who are worshipers of the temple should outweigh the individual interest of the third W.P.(C)No.38722 of 2010 5 respondent. The learned counsel further contended that the alternate routes suggested by the writ petitioner as PST and PQR are shorter and more feasible compared to the routes suggested by the second respondent.
8. Per contra, the learned Standing Counsel for the KSEB contended that the route permitted in Ext.P5 order is the most feasible one which causes least inconvenience to the writ petitioner. The two alternate routes suggested by the writ petitioner are not feasible. Referring to Ext.R2(a) sketch, the learned Standing Counsel for the KSEB submitted that, the route approved by the first respondent in Ext.P5 involves conversion of an existing single-phase overhead line ABC through the southern boundary of the temple property as a three-phase overhead line (39 meters), a new three-phase overhead line CD (33 meters) along the existing gravel road and a weather proof wire DE (10 meters). Out of 39 meters of the single-phase overhead line that has to be converted as three-phase overhead line (i.e., ABC) only 26 meters (i.e., AB) W.P.(C)No.38722 of 2010 6 passes through the temple property. Therefore, the submission of the learned Standing Counsel for the KSEB is that, the only work that has to be undertaken over the temple property in terms of Ext.P5 order is conversion of single-phase overhead line between the existing posts A and B as a three- phase overhead line and the remaining portion of the route is through the gravel road outside the temple compound.
9. I have considered the rival submissions made at the bar.
10. Section 10 of the Telegraph Act, 1885, provides that the telegraph authority may, from time to time, place and maintain a telegraph line under, over, along, or across, and posts in or upon any immovable property. Going by Sub- section (d), in exercise of the powers conferred by Section 10, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in Clause (c), shall pay full compensation to all persons interested for any damage W.P.(C)No.38722 of 2010 7 sustained by them by the reason of the exercise of those powers. As per Sub-section (1) of Section 16, if the exercise of powers mentioned in Section 10 in respect of property referred to in Clause (d) to that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise such powers. Going by the scheme of Section 16 of the Act, the techno- economic feasibility of a route for drawing electric line is exclusively within the domain of the KSEB, which has the expertise to deal with such matters, and the jurisdiction of the District Magistrate under Sub-section (1) of Section 16 is to consider whether the resistance or objection made by the land owner is justifiable or not.
11. In this case, as the area is electrified through a single-phase overhead line, the second respondent, in order to provide electric supply to the third respondent, found it necessary to convert the said line to a three-phase overhead line. When such conversion was objected by the writ W.P.(C)No.38722 of 2010 8 petitioner and other land owners including respondents 4 to 8, the second respondent approached the first respondent under Section 16(1) of the Act, seeking permission to draw the overhead line as proposed. The second respondent originally proposed two routes before the first respondent, and the first proposal was conversion an existing single-phase overhead line to a three-phase overhead line through the southern boundary of the temple property and a fresh three-phase overhead line and weather proof wire along the existing gravel road. The second proposal made was conversion of an existing 157 meters single-phase overhead line passing through the northern side of the temple property and also the property of other land owners as a three-phase overhead line. The writ petitioner submitted Ext.P2 objection before the first respondent, mainly concerned with the safety issues relating to installation of telecommunication tower near temple property. The first respondent conducted site inspection and passed Ext.P5 order after hearing the affected parties, permitting the W.P.(C)No.38722 of 2010 9 second respondent to draw electric line through the route originally proposed by the second respondent, i.e., through the southern boundary of the temple property.
12. Ext.R2(a) produced along with the counter affidavit of the second respondent is a detailed sketch showing the route permitted by the first respondent in Ext.P5 and the alternate routes proposed by the writ petitioner and the second respondent. The writ petitioner has not disputed the correctness of Ext.R2(a) sketch by filing a reply affidavit. Going by Ext.R2(a) sketch the two alternate routes suggested by the writ petitioner are not feasible as the route PST passes through the middle of the compound of Kodamthuruthu Primary Health Centre and the other route PQR is through thick vegetation and passes near two residential buildings. In such circumstances, I find no merit in the contention raised by the learned counsel for the writ petitioner that, the alternate routes suggested by the writ petitioner as PST and PQR are shorter and more feasible compared to the routes suggested W.P.(C)No.38722 of 2010 10 by the second respondent.
13. Referring to Ext.R2(a) sketch, the learned Standing Counsel for the KSEB contended that, the route approved by the first respondent in Ext.P5 involves conversion the existing single-phase overhead line ABC through the southern boundary of the temple property as a three-phase overhead line, a fresh three-phase overhead line CD along the existing gravel road and a weather proof wire DE, and the only work that has to be undertaken in terms of the said order over the temple property is conversion of the single-phase overhead line in between the existing posts A and B to a three-phase overhead line (26 meters) and the remaining portion of the route is through the gravel road outside the temple compound. In such circumstances, I find no merit in the contention raised by the learned counsel for the writ petitioner that, if line is drawn through the Devaswom property as ordered in Ext.P5 irreparable hardship and inconvenience would be caused to the temple in conducting rituals and festivals. W.P.(C)No.38722 of 2010 11
14. The writ petitioner could not make out a case of malafides or arbitrariness in Ext.P5 order passed by the first respondent, warranting interference of this Court under Article 226 of the Constitution of India. Admittedly there exists a single-phase overhead line through the southern boundary of the temple property. When the second respondent proposes only conversion of this single-phase overhead line to a three-phase overhead line in between the existing posts A and B, for about 26 meters over the temple property, the writ petitioner cannot be heard to contend that such conversion would cause any damage to the temple property, entitling him to raise a valid or justifiable objection before the first respondent, in a proceedings under Section 16(1) of the Act. Moreover, going by the specific stand taken by the KSEB in this case, the only work that has to be undertaken in terms of Ext.P5 order over the temple property is conversion of the single-phase overhead line in between the existing posts A and B to a three-phase overhead line for about 26 meters and the W.P.(C)No.38722 of 2010 12 remaining portion of the route is through the gravel road outside the temple compound. In such circumstances, though Ext.P5 order is not happily worded, I find no reasons to interfere with the same.
Therefore this Writ Petition is devoid of any merit. Hence, the same is dismissed. No order as to costs.
ANIL K.NARENDRAN, JUDGE skj True copy P.A. To Judge