IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.SURENDRA MOHAN & SHAJI P.CHALY, JJ.
JOHNY E.C. – Petitioner
Vs.
THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM, COLLECTORATE, KAKKANAD, ERNAKULAM, KOCHI-682 030 – Respondent
W.A.No. 1650 of 2015
Decided on : 22.9.2015
Constitution of India - Article 226 - Telegraph Act 1885, S. 16 - Judicial review - Order passed by the administrative authority - Powers conferred on the two other independent wings of the Government viz. the Legislature and the Executive - Held, Court is not functioning as an appellate Court to find out the correctness or otherwise of the order and the venture of the Court will be to find out whether the administrative authority has committed any illegalities, or other legal infirmities. Judicial restraint is a necessary concomitant to the balance of power envisioned by the framers of our Constitution among the three independent organs of the Constitution. It is true that power of judicial review is one of the most significant feature and vibrant mechanism of our Constitution. But a solemn function is to be exercised with utmost care, caution and circumspection, failing which, the equilibrium expected to be maintained among the wings will collapse
Shaji P. Chaly, J.
These writ appeals are filed by the petitioners in W.P.(C) Nos.6498, 12837 & 15111 of 2011 against the judgment dated 06.04.2015. The writ petitions were disposed of by the learned Single Judge by a common judgment and the subject matter of the dispute involved in the appeals are one and the same and therefore we propose to dispose of the writ appeals also by a common judgment. The facts in the subject matter of the dispute are almost similar and therefore wherever required the facts will be stated separately. The facts as narrated in W.A.No.1847 of 2015 is stated hereunder for the disposal of the above writ appeals.
2. Pursuant to a notification issued by the Kerala State Electricity Board (hereinafter referred to as “the Board”) to draw a 33 K.V. electric line through the properties of the appellants, Representations were submitted against such action of the Board. By the representations, appellants suggested alternative routes so as to avoid drawing line through their properties. While the said representations were so pending, appellant in W.A.No.1650 of 2015 had filed W.P. (C) No.14144 of 2010 before this Court and while the writ petition was pending, notices were issued by the 2nd Respondent invoking his powers under Sec.16(1) of the Indian Telegraph Act and thereupon the said writ petition was closed leaving open the right of the said appellant to raise all objections before the 2nd Respondent.
3. Since the proposal to draw the line through the properties of the appellants and others were objected to, necessarily as provided under law, the 1st Respondent sought permission of the 2nd Respondent and thereupon notices were issued to all the objectors by the 2nd Respondent and passed an order dated 09.11.2009. Pursuant to the said order passed by the 2nd Respondent, 1st Respondent has finalized the route and prepared a sketch finalizing to draw the line through the route “ABCDEFGH” in the sketch so prepared. The order of the 2nd Respondent so passed was challenged before this Court in W.P.(C) No.17670 of 2010 and other connected cases. This Court in W.P.(C) No.17670 of 2010 and connected cases, had set aside the order passed by the 2nd Respondent and directed the 2nd Respondent to pass fresh orders after considering the objections raised by the appellants along with the objections of the other persons also. Thereupon, 2nd Respondent had called the appellants and others for hearing on 08.09.2010, on which date, the appellants filed objections. The 2nd Respondent conducted site inspection on 13.09.2010 and at the time of inspection, the appellants and other alleged aggrieved persons have suggested alternative routes through the public road by which the properties of the appellants and others could be saved.
4. It was also contended that on 10.11.2010, the officers of the Board tried to draw the electric line without any information or any order passed by the 2nd Respondent against the permission sought for by the 1st petitioner. It was further contended that thereafter an order dated 02.11.2010 was received by the appellants against which the appellants have preferred W.P.(C) No.34216 of 2010 and connected writ petitions challenging the said order of the 2nd Respondent. By a judgment dated 12.11.2010, the writ petitions were allowed and directed the 2nd Respondent to re-consider the whole issue after providing sufficient opportunity of hearing to the appellants and pass fresh orders.
5. Thereafter, on 22.02.2011, the 2nd Respondent had passed an order accepting the route suggested by the 1st Respondent by holding that the route suggested by the K.S.E.B was the most feasible route and the drawing of the line suggested by the appellants and others through the public road was not feasible in view of the narrow width of the public road. It was also found by the 2nd Respondent that if foundations are erected to install the electric post, the width of the public road will be further reduced and the same wil
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