Kerala High Court
Unknown vs By Adv.Sri.George Sebastian on 15 January, 2018
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940
WP(C).No. 13387 of 2018
PETITIONER(S)
ST.THOMAS ORTHODOX SYRIAN CHURCH
NECHOOR, ERNAKULAM REP. BY ITS VICAR FR. JOSEPH MALAYIL.
BY ADV.SRI.GEORGE SEBASTIAN
RESPONDENT(S):
1. THE DISTRICT COLLECTOR, ERNAKULAM
COLLECTORATE, ERNAKULAM - 682 030.
2. THE ADDITIONAL DISTRICT MAGISTRATE,
ERNAKULAM - 682 011.
3. THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, KSEB, PIRAVOM,
ERNAKULAM DISTRICT - 686 664.
4. M.C ALIAS,
S/O. CHAKKAPPAN, MATTATHIL HOUSE, NECHOOR P.O,PIRAVOM
VIA,
PIN -686 664.
5. RAJU ABRAHAM
S/O. ABRAHAM, VETTIKUZHIYIL HOUSE, MANEED P.O, PIRAVOM VIA,
ERNAKULAM DISTRICT, PIN - 686 664.
6. SAJI THOMAS,
CHALAPPURATH HOUSE, NECHOOR P.O, PIRAVOM VIA PIN - 686 664.
R BY SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BOARD
LIMITED
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-04-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 13387 of 2018 (W)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 15.01.2018 IN
WP(C) 1404/2018.
EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 24.01.2018 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE OBJECTION DATED 20.02.2018
FILED BY THE PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE COVERING LETTER DATED
21.2.2018 ALONG WITH THE CONSENT GIVEN BY MR.
JOSEPH VARKEY, CHOLAKATHIL HOUSE.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 1.3.2018 IN WP(C)
6938/2018.
EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 28.2.2018 PASSED
BY THE 1ST RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE INFORMATION GIVEN BY THE
VILLAGE OFFICER, MANEED DATED 5.12.2017 UNDER
THE RIGHT TO INFORMATION ACT.
EXHIBIT P8 A TRUE COPY OF JUDGMENT DATED 22.03.2018 IN WP(C)
8055/2018.
EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 06.04.2018 PASSED
BY THE 2ND RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE CONSENT DATED 7.4.2018.
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
SD/-
P.A. TO JUDGE
SKS
P.B.SURESH KUMAR, J.
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W.P.(C).No.13387 of 2018
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Dated this the 13th day of April, 2018
JUDGMENT
Sixth respondent owned an item of property. He applied to the Kerala State Electricity Board Limited (the Board) for electric connection to the building in the property. While the said application was pending, the sixth respondent transferred the property and the building to respondents 4 and 5. On purchasing the property, respondents 4 and 5 pursued the application for electric connection. On the said application, the Board took steps to provide electric connection to the premises by drawing a line through the road through which respondents 4 and 5 have access to the property. The petitioner, a Church, W.P.(c).No.13387 of 2018 :2: holding the neighboring property, objected the proposal of the Board to draw the line, on the premise that the road aforesaid is part of its private property and that line can be drawn to the premises of respondents 4 and 5 through other convenient routes. The matter was placed by the Board before the District Magistrate exercising power under the Indian Telegraph Act and the District Magistrate permitted the Board to draw line to the premises of respondents 4 and 5 overruling the objection raised by the petitioner. Ext.P9 is the order passed by the District Magistrate in this connection. Ext.P9 order is under challenge in the writ petition.
2. Heard the learned counsel for the petitioner, the learned counsel for respondents 4 to 6 as also the learned Standing counsel for the Board.
3. It is seen that the petitioner Church owns a large extent of property in the locality. The property of respondents 4 and 5 is situated on the western side of the property of the petitioner. There exists a road from the place W.P.(c).No.13387 of 2018 :3: called Nechoor Pallippady which ends at the Chapel attached to the Petitioner church, situated on the eastern side of the property of respondents 4 and 5. The proposal of the Board is to draw line to the premises of respondents 4 and 5 through the said road. The case of the petitioner is that a portion of the road is part of their private property in terms of the revenue records and inconvenience would be caused to the worshippers of the Chapel, if line is drawn as proposed.
4. The stand taken by the Board before the District Magistrate was that the route suggested by them is the most technically feasible one; that the alternative route suggested by the petitioner requires consent of more than one person and that the Board prefers to draw electric lines along the road for better maintenance of the lines.
5. The District Magistrate found that the road leading to the Chapel from Nechoor Pallippady is 'puramboke vazhi' in terms of village records. Though the District Magistrate found that a portion of the southern end of the W.P.(c).No.13387 of 2018 :4: said road was previously owned by the petitioner, at present the same is lying as a tarred public road with private plots on either side, with only this road for ingress and egress. It was also found by the District Magistrate that the said road including the portion originally owned by the petitioner is tarred and maintained by the District Administration using the funds of the legislators. It is in the said circumstances, the District Magistrate passed the impugned order.
6. The learned counsel for the petitioner submitted that Ext.P9 order was passed without affording the petitioner an opportunity to establish that the alternative route suggested by them is the least inconvenient route through which the line could be drawn to the premises of respondents 4 and 5. According to the learned counsel, the District Magistrate did not go into the viability of the alternative route as it passes through private properties for which the consent of its owners is required. It is submitted that the owners of the said private properties have no objection in the line being drawn over their properties and W.P.(c).No.13387 of 2018 :5: therefore, the District Magistrate ought not to have passed the impugned order without ascertaining the viability of the alternative route suggested by the petitioner.
7. The fact that the line is proposed to be drawn through a road to which respondents 4 and 5 and many others have access from their respective properties is not disputed by the petitioner. The fact that the said road is one maintained by the District Administration with the funds of the legislators is also not disputed by the petitioner. Even if it is assumed that the petitioner retains some right in the property through which the said road is formed, there is no impediment in law in drawing an electric line over a private property. What is to be seen in matters like this is whether the route is the least inconvenient technically feasible one. As noted above, the petitioner does not dispute the fact that the alternative route suggested by them passes through private properties of more than one person. The District Magistrate finds that the terrain of the said property is not suitable for drawing the line. Be that as it may, the Board W.P.(c).No.13387 of 2018 :6: maintains the stand that when lines could be drawn through roads, the same has to be preferred over lines through private properties, for the purpose of maintenance. In the aforesaid facts and circumstances, I am not inclined to exercise the discretionary jurisdiction of this Court under Article 226 of the Constitution in favour of the petitioner to entertain the writ petition challenging the impugned order.
The writ petition, in the circumstances, is dismissed.
Sd/-
P.B.SURESH KUMAR JUDGE SKS