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High Court of Kerala
A.M. SHAFFIQUE, J.
Elizabeth George & Another
Versus
Deputy Chief Engineer, Transmission Circle, KSEB, & Others
W.P.(C) Nos. 37589 of 2009, 1190 & 3240 of 2010, 3594, 5178, 6452, 6545 & 20896 of 2011
Decided On : 16-07-2013
Constitution of India, 1950 - Article. 226 -Telegraph Act 1885 - Sections. 10 ,16 and 18 - Power To Place Telegraph Lines And Posts - Power for telegraph authority to place and maintain telegraph lines and posts - Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority - Removal of trees interrupting telegraphic communication - right to resist or obstruction - Procedure for obtaining authorization - landowners have not resisted or obstructed or objected to line being drawn across their property, there is no necessity to hear them - Principles of Natural Justice - Whether followed - Discretion exercised by District Magistrate - when can be interfered with - Whether court justified - Order under challenged - Held, The right to resist or obstruction arises at a stage when the lines are about to be drawn or when an attempt is made by K.S.E.B. informing the persons in possession or holder of the land, or the owner thereof stating that the line will be drawn across their property. The resistence or obstruction can be either physical or in writing. Normally one expects an objection to be filed, to the authority concerned namely K.S.E.B., who shall then place the said objection before the District Magistrate who in his discretion shall pass appropriate orders in the matter. Therefore, while considering the question of violation of natural justice, as contended by a few of the petitioners, if they have not resisted or obstructed or objected to the line being drawn across their property, necessarily, there is no reason for hearing such petitioners. - 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 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 - petitioner in the impugned order, District Magistrate has expressed his opinion based on the opinion expressed by the K.S.E.B. It is found that the alternate route suggested by the petitioners is not viable. Reasons are also mentioned. Once K.S.E.B. comes to such an opinion, the District Magistrate cannot have a different opinion in regard to the said route - Electricity Act 2003 - Section. 164
1. Since common questions arise for consideration in the above writ petitions those are decided together.
2. W.P.(C) No. 3240/2010 is filed challenging an order passed by the District Magistrate under Section 16 of the Indian Telegraph Act, 1885 proposing to draw a 110 KV electric line from Tower No.139 through Padinjarekkara estate to the substation at Kanakappalam near Erumely.
3. Petitioners are owners of property through which the proposed line from Tower No.139 is to be drawn. Their complaint is that the original alignment of the 110 KV line was shifted from Tower No.136 to Tower No.139 without properly considering the directions issued by this court and without conducting a proper techno-economical feasibility study by the authorities. Some of the petitioners have a complaint that they were not heard before passing the impugned order.
4. The facts as disclosed would reveal that alignment of the 110 KV line from Tower No.136 was originally approved by KSEB as well as the District Magistrate. Certain persons residing in the said alignment of the electric line, approached this Court by filing writ petitions and by a common judgment dated 20.10.2008 in W.P.(C)Nos.27725/2008 and connected cases, this Court set aside the order of the District Magistrate and directed the District Magistrate, Kottayam to hear the parties and to pass appropriate orders on the alternate route suggested. Pursuant to the said direction the District Magistrate by order dated 28.2.2009 found that the route from Tower No. 139 was more feasible. The said order came to be challenged by the petitioners 1 and 2 in W.P.(C) No. 11996/2009. By judgment dated 15.4.2009, this Court had set aside the impugned order and the matter was remitted back to the District Magistrate for considering the objection raised by the petitioners as well. The matter was reheard, but still the District Magistrate confirmed the route starting from Tower No. 139.
5. Ext. P4 is the impugned order. According to the petitioners, there was no reason for the District Magistrate to have rejected the most feasible route in terms of economy and hardship which starts from Tower No. 136. The route from tower No.136 was chosen after a detailed study and as approved by KSEB and there was no reason to shift the same to Tower No.139. The reasons stated by the District Magistrate for approving the line from Tower No. 139 is without any basis and no comparative study had been conducted in the matter.
6. Counter affidavit is filed by respondents 1 to 4 supporting the stand taken by the District Magistrate. According to them though the route from Tower No.136 was approved by the District Magistrate, the same came to be quashed by judgment dated 20.10.2008 and the District Magistrate was directed to check the feasibility of alternate route and pass fresh orders. It is stated that thereafter the Board had conducted survey of the proposal starting from tower location Tower No.139 and Tower No.145 and reports were submitted to the District Magistrate, who after site inspection of the various routes and after hearing the affected parties passed an order dated 28.2.2009 rejecting the route from Tower No.136 and approving the route from Tower No.139. Again the said matter was challenged before this Court and on the basis of the direction issued by this Court all affected parties were heard. As per the directions of the District Magistrate the Board had conducted a site inspection of the petitioners' premises and had submitted a detailed report. It is thereafter the impugned order came to be passed.
7. An additional counter affidavit is also filed by respondents 1 to 4 based on the report submitted by the Advocate Commissioner. According to them about 59 persons will be affected when the line is drawn from Tower No.139 and about 51 persons will be affected if the line is drawn through Tower No.136. They have also given a comparative statement of the two routes which is extracted as under:
Comparat
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