Kerala High Court
Indu Chandran vs Kerala State Electricity Board Ltd on 28 January, 2017
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939
WP(C).No. 4589 of 2017 (W)
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PETITIONERS:
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1. INDU CHANDRAN, W/O.T.R RAJESH,
AGED 39 YEARS, RESIDING AT
CHANDRAVILAS, MUTHOOR P.O,
THIRUVALLA - 689 107.
2. SINDHU CHANDRAN,
W/O.M.J SREEKUMAR NAIR,AGED 46 YEARS,
RESIDING AT PRATHEEKSHA,
VALAYAMCHIRANGARA P.O,
PERUMBAVOOR - 683556.
3. BINDU CHANDRAN,
W/O.P.VIJAYAKUMAR, AGED 49 YEARS,
RESIDING AT CHANDRAVILAS,
MUTHOOR P.O, PIN - 6891207.
4. SATHEESHKUMAR,
S/O.MADHAVAN NAIR, AGED 56 YEARS,
RESIDING AT MADHAVA NIVAS, MUTHOOR P.O,
THIRUVALLA - 689 107.
5. SYAMALADEVI,
D/O.MADHAVAN NAIR, AGED 65 ,
RESIDING AT POORNIMA, MUTHOOR P.O,
THIRUVALLA - 689 107.
6. SASIKUMAR P,
S/O.PRABHAKARAN PILLAI,AGED 55 YEARS,
RESIDING AT PONMALATH HOUSE,
MUTHOOR P.O, THIRUVALLA - 689 107.
7. KAMALAKSHMI AMMA, W/O.PRABHAKARAN PILLAI,
AGED 80 YEARS, RESIDING AT
PONMALATH HOUSE, MUTHOOR P.O,
THIRUVALLA - 689 107.
8. MADHUSOODANAN, S/O.SIVARAMAN ACHARI,
AGED 60 YEARS, RESIDING AT CENTRA,
MUTHOOR P.O, THIRUVALLA - 689 107.
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WP(C).No. 4589 of 2017 (W)
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9. SURESHKUMAR,
S/O.PARAMESWARAN PILLAI,
AGED 62 YEARS, RESIDING AT VISAKHAM,
MUTHOOR P.O, THIRUVALLA - 689 107.
BY SRI.K.GOPALAKRISHNA KURUP (SENIOR ADVOCATE)
ADVS.SMT.DEEPTHI S.MENON
SRI.K.SURESH
RESPONDENTS:
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1. KERALA STATE ELECTRICITY BOARD LTD.,
REPRESENTED BY ITS SECRETARY,
VYDYUTHI BHAVANAM, PATTOM,
THIRUVANANTHAPURAM - 695 004.
2. ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION,
KERALA STATE ELECTRICITY BOARD LTD,
THIRUVALLA, MINI VYDYUTHI BHAVANAM,
OPP. KSRTC, PIN - 689 101.
3. ADDITIONAL DISTRICT MAGISTRATE,
PATHANAMTHITTA, OFFICE OF THE
ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE,
PATHANAMTHITTA, PIN - 689 645.
4. REV. JOSHI THEVALAKKARA,
MANAGER, CHRIST CENTRAL SCHOOL,
MUTHOOR P.O, THIRUVALLA - 689 107.
R1 & R2 BY SRI.SUDHEER GANESH KUMAR R., SC
R3 BY GOVERNMENT PLEADER SMT.JASMIN
R4 BY ADVS.SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-06-2017, THE COURT ON 20-06-2017 DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 4589 of 2017 (W)
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE TAX RECEIPT DATED 28-01-2017
IN RESPECT OF THE PROPERTY OF THE
1ST PETITIONER.
EXHIBIT P2: TRUE COPY OF THE TAX RECEIPT DATED 27-09-2008 IN
RESPECT OF THE PROPERTY OF THE 2ND PETITIONER.
EXHIBIT P3: TRUE COPY OF THE TAX RECEIPT DATED 19-04-2014 IN
RESPECT OF THE PROPERTY OF THE 3RD PETITIONER.
EXHIBIT P4: TRUE COPY OF THE TAX RECEIPT DATED 26-05-2012 IN
RESPECT OF THE PROPERTY OF THE 4TH PETITIONER.
EXHIBIT P5: TRUE COPY OF THE TAX RECEIPT DATED 19-03-2003 IN
RESPECT OF THE PROPERTY OF THE 6TH PETITIONER.
EXHIBIT P6: TRUE COPY OF THE TAX RECEIPT DATED 25-04-2015N
IN RESPECT OF THE PROPERTY OF THE
8TH PETITIONER.
EXHIBIT P7: TRUE COPY OF THE TAX RECEIPT DATED 22-05-2012 IN
RESPECT OF THE PROPERTY OF THE 9TH PETITIONER.
EXHIBIT P8: TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONERS AND OTHERS BEFORE THE DISTRICT
COLLECTOR, PATHANAMTHITTA ON 13-07-2016.
EXHIBIT P9: TRUE COPY OF THE APPLICATION DATED 16-08-2016
SUBMITTED BY THE 2ND RESPONDENT BEFORE THE
3RD RESPONDENT.
EXHIBIT P10: TRUE COPY OF THE REPORT ALONG WITH LOCATION
SKETCH SUBMITTED TO THE REVENUE DIVISIONAL
OFFICER BY THE VILLAGE OFFICER, THIRUVALLA.
EXHIBIT P11: TRUE PHOTOGRAPH SHOWING THE FIRST ROUTE PROPOSED
IN EXT P10 REPORT.
EXHIBIT P12: TRUE PHOTOGRAPH SHOWING THE SECOND ROUTE PROPOSED
IN EXT P10 REPORT.
EXHIBIT P13: TRUE PHOTOGRAPH SHOWING THE THIRD ROUTE PROPOSED
IN EXT P10 REPORT.
EXHIBIT P14: TRUE COPY OF THE REPORT DATED 14-11-2016
SUBMITTED BY THE TAHSILDAR, THIRUVALLA BEFORE
THE DISTRICT COLLECTOR, PATHANAMTHITTA.
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WP(C).No. 4589 of 2017 (W)
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EXHIBIT P15: TRUE COPY OF THE REPORT DATED 16-1-2017 SUBMITTED
TO THE DISTRICT COLLECTOR, PATHANAMTHITTA BY THE
DEPUTY CHIEF ENGINEER, ELECTRICITY BOARD,
PATHANAMTHITTA.
EXHIBIT P16: TRUE COPY OF THE ORDER NO B6-31661/16
DATED 3-2-2017 PASSED BY THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R4A: TRUE COPY OF THE REPORT BEARING
NO.DB26/COLLECTORATE/6-17/104 DATED 1.12.2016
SUBMITTED BY THE 2ND RESPONDENT BEFORE THE
3RD RESPONDENT.
//TRUE COPY//
P.S. TO JUDGE
mbr/
(CR)
A.K.JAYASANKARAN NAMBIAR, J.
.............................................................
W.P.(C).No.4589 of 2017
.............................................................
Dated this the 20th day of June, 2017
J U D G M E N T
The petitioners are persons, who own properties on either side of the Ponmalath Road in Muthoor, Thiruvalla, which leads to a school under the management of the 4th respondent. Electric supply to the properties of the petitioners as well as the school is provided through a Low Tension (LT) connection, the lines of which are drawn through poles erected along the Ponmalath Road. The 4th respondent, who currently avails the electric connection to a connected load of 28 KW, submitted an application before the 2nd respondent seeking an additional power allocation to the extent of 64 KW. The requirement of the 4th respondent necessitated the conversion of his existing power supply from Low Tension (LT) to High Tension (HT) and the 2nd respondent proposed the said supply by dismantling the existing poles in the Ponmalath Road and replacing it with HT poles through which, not only the LT lines supplying power to the petitioners, but also an HT line supplying -2- W.P.(C).No.4589 of 2017 power to the 4th respondent, would be drawn.
2. The petitioners objected to the drawing of the lines in the above manner and submitted their objections to the District Collector, Pathanamthitta, along with their suggestion of two alternate routes through which the lines could be drawn. The objections submitted by the petitioners were forwarded to the 3rd respondent for his consideration in accordance with Section 16 of the Indian Telegraph Act. The 2nd respondent also submitted an application before the 3rd respondent, on 16.08.2016, seeking a rejection of the objections submitted by the petitioners and a permission to draw the lines as proposed by him.
3. The 3rd respondent, who had to exercise his discretion under Section 16 of the Telegraph Act called for a report from the Village Officer, who suggested three alternate routes for drawing the line including the one proposed by the 2nd respondent. Thereafter, a report was also called from the Tahsildar, who appears to have suggested, based on his understanding of the Village Officers report, that if the petitioners were convinced about the security aspects regarding the lines, they would not seriously object to the proposal of the 2nd respondent. The 3rd respondent, -3- W.P.(C).No.4589 of 2017 thereafter, heard the petitioners, the 2nd respondent and the 4th respondent, and after considering the reports submitted by the Tahsildar and the 2nd respondent, passed Ext.P16 order granting permission to the 1st respondent Board to draw the lines through the route proposed by the 2nd respondent. The petitioners impugn Ext.P16 order in this writ petition on the following grounds, namely, i. That the 3rd respondent while passing Ext.16 order, relied on the report of the Tahsildar which had misinterpreted the report of the Village Officer that suggested that there were other feasible routes for drawing the lines which would have caused less inconvenience to persons in the locality.
ii. That the drawing of an HT line through the proposed route would prejudice the rights of the petitioners as regards future constructions on their property, as the existing building rules contemplated the maintenance of minimum distance requirements while effecting constructions in the vicinity of HT lines. The present proposal, they contend, would prejudicially affect their right to a free use of their property.
-4- W.P.(C).No.4589 of 2017
4. A counter affidavit has been filed on behalf of the 3rd respondent wherein reliance is placed on a report of the Deputy Chief Engineer as also the 2nd respondent, as regards the technical feasibility of the proposed route, to point out that it was on finding that the proposed line would not cross over any private property, and that there was no reason to doubt the view expressed by the experts, that the permission was granted to the 1st respondent Board to draw the lines in the manner proposed. In the counter affidavit filed by the 4th respondent, while supporting the decision of the 3rd respondent, a copy of the report of the 2nd respondent that was submitted to the 3rd respondent is also produced. The said report deals with the technical aspects of the proposal as also the economic feasibility thereof. The relevant extract of the report reads as under:
"1. The proposed 275 meter 11 KV line is to be drawn along the Municipal Public road, where there already exists a low tension (LT) three phase line. This existing LT line is drawn for providing electric service connections to the local residents (complainants) and the Christ Central School (beneficiary). The proposed 11 KV line (High Tension- HT) is to be drawn after erecting 9 meter (height) concrete (PSC) electric posts in the same place / location, where there exists 8 meter (height) concrete (PSC) electric posts used for drawing the existing LT line. So, there is no change in location of electric posts or addition of electric posts along this route for drawing this proposed 11 KV line.-5- W.P.(C).No.4589 of 2017
The supports (electric posts) used for the construction of this proposed HT line is manufactured and erected strictly based on the standards laid down in the regulations-90 to 98 of Central Electricity Authority Technical standards for construction of electrical plants and electric lines) regulations 2010. There will not be any narrowing of the road due to the erection of new electric posts, except change in the type of electric posts (change in height) Vehicular movement will not at all be restricted. There is no crossing over of any private property by the proposed Ht line, or rather for that matter by the existing LT line.
2. The Location where LT Stays erected for drawing the existing LT line will be utilised for converting it to HT stays, at the same location. There will not be any inconvenience as such for the local residents or anybody else, due to erection of new HT Stays. The Stays will be erected as per the standards laid down in regulation-100 of Centralo Electricity Authority (Technical standards for construction of electrical plants and electric lines) regulations 2010.
3. The existing LT line is drawn after ensuring statutory clearances above ground level for the lowest conductor, mentioned in regulation -58(1) of Central Electricity Authority (Measures relating to safety and electric supply) regulations 2010 i.e. minimum ground clearance of 5.8 meter across the street. This minimum ground clearance for LT line across the street stipulated in the CEA regulations will be ensured after the erection of proposed HT electric posts also.
4. The existing LT line is drawn after ensuring statutory clearances above ground level for the lowest conductor, mentioned in regulation -58(2) of Central Electricity Authority (Measures relating to safety and electric supply) -6- W.P.(C).No.4589 of 2017 regulations 2010 i.e. minimum ground clearance of 5.8 meter along the street. This minimum ground clearance for LT line along the street stipulated in the CEA regulations will be ensured after the erection of proposed HT electric posts also.
5. The existing LT line is drawn after ensuring statutory clearance from building or structures for the nearest conductor (outermost), mentioned in regulation- 61(3) of Central Electricity Authority (Measures relating to safety and electric supply) regulations 2010 i.e. minimum horizontal clearance of 1.2 meter from the nearest conductor to any building / structure. This minimum horizontal clearance between the nearest conductor and any building / structure stipulated in the CEA regulations will be ensured after the erection of proposed HT electric posts also.
6. The proposed 11KV (HT) overhead line is to be drawn using insulated Aerial Bunched Cable (ABC) - a new technology widely being proposed and constructed all over India. Insulated overhead conductor is more safer, reliable and less prone to interruption due to vegetation, treebranches and other external interferences. Moreover, the safe ground clearances and horizontal clearance required for insulated overhead conductor is much lesser than that required for an overhead bare conductor.
7. The minimum ground clearance mentioned in regulation -58(1) of Central Electricity Authority (Measures relating to safety and electric supply) regulations 2010 i.e. minimum ground clearance of 5.8 meter across the street for HT line from the lowest "bare"
conductor to ground, will be ensured after the drawal of proposed overhead AB Cable also.
8. The minimum ground clearance -7- W.P.(C).No.4589 of 2017 mentioned in regulation -58(2) of Central Electricity Authority (Measures relating to safety and electric supply) regulations 2010 i.e. minimum ground clearance of 5.5 meter along the street for HT line from the lowest "bare"
conductor to ground, will be ensured after the drawal of proposed overhead AB Cable also.
9. The minimum Horizontal clearance mentioned in regulation- 61(3) of Central Electricity Authority (Measures relating to safety and electric supply) regulations 2010 i.e. minimum horizontal clearance of 1.2 meter from the nearest "bare" conductor to any building / structure, will be ensured after the drawal of proposed overhead AB Cable also.
10. Earthing of the electric line and associated metallic and non-metallic parts are done based on the standards laid down in the regulation-99 of Central Electricity Authority (Technical standards for construction of electrical plants and electric lines) regulations 2010. This will be ensured after the drawal of proposed overhead AB Cable also.
KSEB Ltd. hereby agrees to ensure the safety standards laid down by the Central Electricity Authority for the construction of this overhead ABC line for providing electric supply to the premises of Christ Central School, Muthoor P.O, Thiruvalla. There will not be any additional inconvenience due to the drawal of this proposed ABC line, except the fact that some of the tree branches trespassing over the public road should be cut for the drawal of this line."
5. I have heard Sri.K.Gopalakrishna Kurup, the learned Senior counsel on behalf of the petitioners, Sri.Sudheer Ganesh Kumar, the learned Standing counsel appearing for respondents 1 and 2, -8- W.P.(C).No.4589 of 2017 the learned Government Pleader for the 3rd respondent and Sri.Jacob P.Alex, the learned counsel for the 4th respondent.
6. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I feel it would be profitable, at the outset, to note the relevant statutory provisions that govern the issue raised in the present writ petition. Under the Electricity Act, 2003, Section164 enumerates the circumstances under which an authority under the Act can exercise the powers of a Telegraph Authority under the Indian Telegraph Act, 1885. The said Section reads as under:
"164. Exercise of powers of Telegraph Authority in certain cases.- The appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee a or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possess under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained."-9- W.P.(C).No.4589 of 2017
It will be seen from a reading of Section 164 that it enables the appropriate Government to confer upon any public officer, licensee etc., any of the powers that a telegraph authority possesses under the Indian Telegraph Act, 1885 with regard to placing of telegraph lines etc. It is on the basis of the power conferred on the authority by the Government, pursuant to Section 164 of the Electricity Act, that the empowered authority exercises the powers in respect of laying of electric lines in terms of Section 10 of the Indian Telegraph Act. Under the said provision, the empowered authority has to exercise the power for the purposes mentioned in the said Section, and the provision makes it clear that the authority at whose instance the power is exercised does not acquire any right other than that of a user of the property under, over, along, across, in, or upon which the electric line or posts is placed. The provision also mandates that the empowered authority shall do as little damage as possible, when it exercises the power in respect of any property other than property under the control of management of a local authority, and shall pay full compensation to all persons interested for any damage sustained by them by reason of exercise of those powers. It is apparent from a reading of Section 10 of the Indian Telegraph Act, therefore, that the power to be exercised thereunder is to be in the interests of the general public, and when -10- W.P.(C).No.4589 of 2017 so exercised, the restrictions that are imposed on the property owners cannot be said to be unreasonable. As was noted by a Full Bench of this Court in Bharat Plywood and Timber Products Private Ltd v. Kerala State Electricity Board Trivandrum and Others [AIR 1972 Kerala 47] "One may have to suffer some detriment in the user of the property to serve the common good, and he cannot complain when full compensation is paid for the detriment". The aforesaid observation was made while upholding the restrictions imposed under Section 10 as reasonable.
7. As per the statutory Scheme of the Indian Telegraph Act, whenever in the exercise of powers under Section 10 in respect of any property referred to in Clause (d) of that Section, the empowered authority is resisted or obstructed, the said authority may bring the fact of resistance or obstruction to the notice of the District Magistrate, who may, in his discretion, order that the empowered authority shall be permitted to exercise his powers. The use of the phrase "in his discretion" while describing the role of the Magistrate under section 16 clearly indicates that it is a discretionary power that is granted to the District Magistrate while deciding on whether or not the empowered authority should be permitted to exercise his powers in accordance with Section 10 -11- W.P.(C).No.4589 of 2017 of the Telegraph Act. It has been held in the Full Bench decision of this Court in Bharat Plywood and Timber products (Supra) that, before passing an order under Section 16(1), the District Magistrate has necessarily to issue notice to all persons interested and give them an opportunity to state their objections, if any. This requirement was seen necessary since it was opined that, without giving such an opportunity, the District Magistrate would not have adequate material to decide whether or not he should pass an order that the empowered authority should be permitted to exercise his powers under section 10 of the Act. The decision of the Full Bench of this Court referred above, dealing with the scope of the discretion exercised by the District Magistrate under Section 16 has been followed by this Court in subsequent decisions including Elizabeth George and Others v. Deputy Chief Engineer, KSEB, Kottayam and Others [2013 (3) KHC 686] and Johny E.C v. Additional District Magistrate, Ernakulam and Others [2015 (5) KHC 40].
8. The scope of an interference with the exercise of a discretion by the District Magistrate was examined by this Court in Elizabeth George and Others v. Deputy Chief Engineer, KSEB, Kottayam and Others [2013 (3) KHC 686]. This Court, -12- W.P.(C).No.4589 of 2017 after an exhaustive analysis of the precedents on the point, found as follows:
"38. The law regarding the scope for interference in such matters is well settled. In Bharat Plywoods & T. Products (supra) full bench of this Court held that the discretion conferred by section 16(1) of the Telegraph Act on the District Magistrate is certainly a judicial discretion. When an owner or occupier resists or obstructs the exercise of the power under S.10, the telegraph authority will have to approach the District Magistrate for an order under subsection (1) of S.16. In Valsamma Thomas (supra) a division bench of this court held that when the District Magistrate has been given discretion to permit or not to permit the Electricity Board or the Telegraph Authority to draw the lines through the property of an individual, this function is to be exercised after hearing the affected parties. The District Magistrate has to enquire into the objections raised by the affected parties and try to minimise the hardship caused to the person by drawing the line through a particular portion of a property. The District Magistrate also has to take into account the technical feasibility and also the expenditure involved which has to be ascertained from the Department as the Department would be able to give necessary data with regard to the expenditure involved. It is further held that "The ground on which the courts will review the exercise of a discretion is abuse of power, eg. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity." On a reference to Benjamin Cardozo in "The Nature of Judicial Process" it is also held that there is nothing like unfettered discretion immune from judicial review ability. After reference to various authorities the division bench held that (1) The District Magistrate has to exercise his discretion judicially, after hearing the parties and after taking such evidence as is required with regard to the objections raised, it should be a speaking order, it should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same and the order should -13- W.P.(C).No.4589 of 2017 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 mala fides this Court will not be justified in interfering with such orders. It is also held that this Court will not be justified in substituting its own opinion as this Court does not have the technical expertise and will be slow to interfere with such matters. In Kesavan (supra) this court held that the authority under section 16(1) of the Telegraph Act, should act in good faith and should give a fair opportunity to those who were parties to the controversy to correct or contradict any relevant statement prejudicial to their view. In Gurdial Singh (supra) the Supreme Court held that bad faith invalidates the exercise of power and at times amounts to colourable exercise or fraud on power. The action is bad where the true object is to reach an end different from the one for which the power is entrusted. It is further held that fraud on power voids the order if it is not exercised bona fide for the end designed. In Shrisht Dhawan (supra) it is held that "The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But nondisclosure of a fact not required by a statute to be disclosed may not amount to fraud." In Bajaj Hindustan Ltd. (supra) Supreme Court held the judiciary should interfere with administrative decisions only within narrow certain limits e.g. when there is clear violation of the statute or a constitutional provision, or there is arbitrariness in the Wednesbury sense. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest.
The Court should not ordinarily interfere with policy decisions, unless it is clearly illegal. In Radhy Shyam (supra) the Supreme Court held that while examining -14- W.P.(C).No.4589 of 2017 the landowner's challenge to the acquisition of land in a petition filed under Article 226 of the Constitution, the High Court should not adopt a pedantic approach, and should decide the matter keeping in view the constitutional goals of social and economic justice and the fact that even though the right to property is no longer a fundamental right, the same continues to be an important constitutional right and in terms of Article 300-A. In Noida Entrepreneurs Assn. (supra) Supreme Court held that State actions are required to be non- arbitrary and justified on the touchstone of Article 14 of the Constitution and that action of the State or its instrumentality must be in conformity the principle which meets the test of reason and relevance. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. It is further held that the public trust doctrine is a part of the law of the land and in essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In K.T.Plantation (P) Ltd. (supra) Supreme Court held that Article 300-A would be violated if the provisions of law authorising deprivation of property have not been complied with. It also held that "Let the message, therefore, be loud and clear, that the rule of law exists in this country even when we interpret a statute, which has the blessings of Article 300-A." In Kushala Shetty (supra) Supreme Court held that when the courts are not equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest, the scope of judicial review is very limited. The court can nullify the acquisition of land only, if it is found to be contrary to the mandate of law or tainted due to mala fides. In Greater Noida Industrial Development Authority (supra) the Supreme court considers the scope of enquiry in land acquisition cases. It is held that "If the land is acquired, not only the -15- W.P.(C).No.4589 of 2017 present but the future generations of the landowner are deprived of their livelihood and the only social security. They are made landless and are forced to live in slums in the urban areas because there is no mechanism for ensuring alternative source of livelihood to them. Mindless acquisition of fertile and cultivable land may also lead to serious food crisis in the country."
9. The upshot of the above discussion is that, inasmuch as Section 16 contemplates the exercise of a discretion by the District Magistrate, a judicial review of the decision of the District Magistrate must be resorted to only in accordance with the well settled parameters that inform the exercise of the said power. Thus, this Court would 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 sense or vitiated by malafides, either factual or legal. It might perhaps be possible for this Court to undertake a merits review of the decision of the District Magistrate also, but such instances must necessarily be rare and confined only to cases where such legal rights of citizens are breached, the need for protection of which, far outweighs the public interest sought to be attained through the exercise of the discretion. Further, when examining the rationality of the decision, as also the reasonableness of the -16- W.P.(C).No.4589 of 2017 measure, this Court must defer to the opinion of experts in the field, and if the decision of the District magistrate is found to be based on the opinion of experts, then this Court should not normally interfere with the said decision. In the instant case, a perusal of Ext.P16 order would clearly indicate that the District Magistrate had only followed the opinion of experts in a technical matter involving the drawing of electric lines. The practical aspects, such as the non-requirement of additional poles and only a replacement of existing poles, leading to reduced inconvenience to the persons in the locality, that were found in favour of the route that was ultimately proposed, leads me to hold that the decision of the District magistrate does not require to be interfered with in the instant case. It might also merit mention at this stage that, as per the route now proposed for the electric lines, the lines will not pass through the property of the petitioners, and hence, the petitioners do not, at any rate, fall within the class of persons, whose objections merit a consideration under the statutory Scheme under the Telegraph Act. This aspect has also been discussed in the decision of this Court in Sunil Kumar G. v. Kerala State Electricity Board, Trivandrum and Others [2015 (1) KHC 430].
-17- W.P.(C).No.4589 of 2017
In the result, I am of the view that, no grounds have been made out warranting an interference with Ext.P16 order of the District Magistrate in these proceedings under Article 226 of the Constitution of India. The writ petition, therefore, fails and is accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns/17.06.17