Allowed

Smt.Annie Mathew v. the Chief Manager(Tlc)

Kerala HC7 Jul 2010WP(C)/6594/2010

Case brief

AI extract

What is this about?

The High Court of Kerala held that the respondents violated the binding directions of a previous judgment regarding the inspection and offer of alternate land for a crematorium, setting aside an impugned notice and directing compliance.

What did the court decide?

Ext.P12 was set aside; it is directed that the Panchayat and the First Respondent will inspect and consider the suitability of the land offered by the petitioner in light of Ext.P9 judgment directions

Smt.Annie Mathew Vs the Chief… — Constitutional and Fundamental Rights | Kerala HC (2010)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT :

¶3

THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

¶4

WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932

¶5

WP(C).No. 6594 of 2010(Y)

¶6

-------------------------------------

¶7

PETITIONER:

¶8

-------------------

¶9

SMT.ANNIE MATHEW, AGED 57 YEARS, W/O.V.J.MATHEW,VATTAVAYALIL,JESUS ROAD, VADUTHALA,KOCHI-682 023.

¶10

BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE, ADV.SRI.TONY GEORGE KANNANTHANAM.

¶11

RESPONDENTS:

¶12

------------------------

¶13

1. THE CHIEF MANAGER (T L C),POWER GRID CORPORATION OF INDIA LTD,CONSTRUCTION AREA OFFICE 'CHANDINI',PLOT NO.190-B,MAVELIPURAM COLONY, KAKKANAD POST,KOCH-682 030.

¶14

2. THE SECRETARY,MELUR GRAMA PANCHAYAT, MELUR,PIN-630 311.

¶15

3. ADDITIONAL DISTRICT MAGISTRATE, THRISSUR.

¶16

R1 BY ADV. SRI.MILLU DANDAPANI, S.C, R2 BY ADV. SRI.V.A.MUHAMMED, R3 BY GOVT. PLEADER SRI. ANTONY MUKATH.

¶17

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

W.P.(C). NO.6594/2010-Y:

¶19

APPENDIX

¶20

PETITIONERS' EXHIBITS:

¶21

EXT.P.1: COPY OF THE NOTICE DTD. 01/11/2008 ISSUED TO THE PETITIONER BY THE R.1.

¶22

EXT.P.2: COPY OF THE OBJECTION DTD. 17/11/2008 SUBMITTED BEFORE THE R.1. BY THE PETITIONER.

¶23

EXT.P.3: COPY OF THE HEARING NOTICE DTD. 15/12/2008 SENT TO THE PETITIONER BY THE R.3.

¶24

EXT.P.4: COPY OF THE PETITION DTD. 12/01/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.3.

¶25

EXT.P.5: COPY OF THE COVERING LETTER DTD. 14/01/2009 AND PLAN SUBMITTED BY THE PETITIONER BEFORE THE R.3.

¶26

EXT.P.6: COPY OF THE TWO LOCATIONS IN THE AREA PREPARED BY THE R.1.

¶27

EXT.P.7: COPY OF THE ORDER NO. C4/SR/ET 170/08/K DIS. DTD. 12/01/2009 PASSED BY THE R.3.

¶28

EXT.P.8: COPY OF THE REQUEST LETTER DTD. 25/02/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.2.

¶29

EXT.P.9: COPY OF THE JUDGMENT ON 30/07/2009 W.P.(C).NO.19437/2009 OF THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.

¶30

EXT.P.10: COPY OF THE OFFER DTD. 05/08/2009 SUBMITTED BY THE PETITIONER.

¶31

EXT.P.11: COPY OF THE LETTER DTD. 17/08/2009 ISSUED BY THE R.1. TO THE PETITIONER.

¶32

EXT.P.12: COPY OF THE ORDER DTD. 04/12/2009 ISSUED BY THE R.1. TO THE PETITIONER.

¶33

EXT.P.13: COPY OF THE REPLY DTD. 11/12/2009 SUBMITTED BY THE PETITIONER TO THE R.1.

¶34

EXT.P.14: COPY OF THE NOTICE DTD. 12/12/2009 ISSUED BY THE R.1. TO THE PETITIONER.

¶35

EXT.P.15: COPY OF THE NOTICE DTD. 19/12/2009 SENT BY THE PETITIONER TO THE R.1. EXT.P.16: COPY OF THE SECOND OFFER DTD. 23/01/2010 SUBMITTED BY THE PETITIONER BEFORE THE R.1.

¶36

W.P.(C). NO.6594/2010-Y:

¶37

EXT.P.17: COPY OF THE POSTAGE COVER EVIDENCING THE ACKNOWLEDGEMENT OF EXBIBIT P.12.

¶38

RESPONDENTS' EXHIBIT:

¶39

EXT.R4.1: GOOGLE EARTH MAP COMPRISING THE DETAILS OF THE ALTERNATE AND PROPOSED LINE ALIGNMENT.

//TRUE COPY//

P.S. TO JUDGE.

Prv.

W.P.(C) NO.6594 OF 2010(Y)

¶44

ANTONY DOMINIC, J.

¶45

--------------------------------------------------

¶46

--------------------------------------------------

¶47

Dated this the 7^th day of July, 2010

¶48

J U D G M E N T

¶49

Prayer sought in this writ petition is to quash Ext.P12 and to direct the respondents to draw 400 KV Kochi-Tirur Transmission Line through the corridor of the existing 220 KV Transmission Line and to consider Ext.P16 option exercised by the petitioner and take a decision thereon.

¶50

Briefly stated the facts of the case are that near to the petitioner's property having an extent of about 3.15 acres of land situated in Sy. No.997/1 of Melur Village, Trissur District, 2^nd respondent Panchayat owns a plot of land having an extent of 50 cents of land situated in the very same survey number. A 220 K.V. Line was crossing though the property of the petitioner as also the Panchayat. As a part of the national grid, respondent proposed to upgrade the existing 220 KV line into a 400 KV line. That was objected by the Panchayat stating that its plot of land referred to above was purchased by it for the purpose of setting up a gas crematorium and that if the 400 KV line is drawn overhead, it will

¶51

WPC.No.6594 /2010

¶52

:2 :

¶53

not be possible for the Panchayat to set up the crematorium with its chimney having a hight of 35 meters.

¶54

According to the first respondent, in the light of the above,

¶55

the only option it had was to shift the alignment of the 400 KV line into the property of the petitioner. Contending that extension damage will be caused, when objections were raised by the petitioner, the matter was referred to the 3^rd respondent, in terms of the provisions contained under the Indian Telegraph Act, for removal of the obstruction. The 3^rd respondent heard the parties, considered the various options suggested and passed Ext.P7 order, the operative portion of which reads as under.

¶56

“Out of the two options and three alternatives discussed above, option 1 is seen most feasible as the proposed gas crematorium can be avoided from the line alignment. It is less inconvenient to respondent No.1 a the tower and line will be through the western side of her pineapple garden. Regarding the mutual exchange of land, Panchayat had not expressed their willingness. Moreover, it cannot be considered until it is materialized or Panchayat make a request before the Power Grid Corporation to draw the 400 KV electric line through he existing 220 KV alignment, on the ground that they intend to exchange land with respondent No.1. Then the request is to be honored and line drawn accordingly. Otherwise, the line is o be drawn as per Option No.1.”

¶57

WPC.No.6594 /2010

¶58

:3 :

¶59

Petitioner challenged Ext.P7 order before this court in WP

¶60

(c).No.19437/2009. That writ petition was disposed of by Ext.P9

¶61

judgment dated 30^th July, 2009 with the following directions.

¶62

“(1). That the Panchayat and the 1^st respondent shall inspect the land offered by the petitioner and if it is found that the land in question satisfies the requirements of the Kerala Panchayat Raj(Burial and Burning Grounds) Rules, 1998 and the requirements of the 1^st respondent, the land offered by the petitioner will be accepted and the Ist respondent shall draw the line through the land offered by the petitioner and accepted by the 2^nd respondent.

¶63

(2). If for some reason, the plot now offered by the petitioner is not suitable, it will be open to the petitioner to offer another suitable plot of land, which offer shall be made immediately on being notified of the same. Once such an offer is made, respondents 1 and 2 will inspect the said land and if it meets their requirements, accepting the offer, the line shall be drawn through such alignment.

¶64

(3). It is made clear that once the aforesaid process is completed and it is found that the land presently offered or plots of land likely to be offered are not suitable for the requirements of respondents 1 and 2, it will be open to the 1^st respondent to draw the line through the alignment as allowed in Ext.P7 order of the 3^rd respondent.”

¶65

(4). It is directed that the offer, inspection and the finalization of the alternative plot should be expedited and the whole process should be completed at any rate within 3 weeks from the date of production of a copy of

¶66

WPC.No.6594 /2010

¶67

:4 :

¶68

this judgment, so that the 1^st respondent can draw the line without any further delay. “

¶69

In pursuance to the direction(1) herein above, a joint

¶70

inspection of the plot offered by the petitioner to the Panchayat for setting up the gas crematorium over which the line could be realigned, was conducted on 20.8.2008. Subsequently, the Panchayat considered the matter and passed resolution dated 29.10.2009 . A copy of the resolution was made available by the counsel for the Panchayat, which reads as under.

¶71

“ SosP¡ NYLokµLp¾V29.10.2009 f}pf] jaÐ yLiLqe o}ã]UY]Rs VIII- LU jÒ¡ f}qOoLjU

¶72

SosP¡ NYLokµLp¾V vW WOÐÕ]ç]p]¤ Dç SosP¡ v]Ssæ^V y¡Svÿ 997/1&sOç kµLp¾V vW 50 Ry¢ãV òsU wÜwLjU j]¡Ú]¨OÐf]jLpOç jaka]W¥ y~}Wq]\ÿOvqOÐfOU Av]Ra KqO Y|LyV NW]o]SãLr]pU yUmÌ]\ÿV ASjxeU ja¾] Bvw|oLp fOa¡jaka]W¥ RRWRWLºO vq]WpOoLeV. a] òVs¾]R£ oOWt]¤ WPa] DºLp]qOÐ av¡ RRs¢ oLã] òLk]¨OÐf]Ss¨Lp] 10.10.2008&¤ 7(5) f}qOoLj NkWLqU kv¡NY]cV SWL¡kSrxSjLaV Bvw|RÕaOWpOU Bpf]R£ Aa]ygLj¾]¤ SWL¡kSrx¢ jaka] y}Wq]¨OWpOoOºLp]. IÐL¤ a] òsS¾LaV S\¡ÐO W]a¨OÐ òs¾]R£ DaoLp

¶73

WPC.No.6594 /2010

¶74

:5 :

¶75

è}of]. Bj] oLf|O, W/o. v].R^. oLf|P, ^}yyV SrLcV, vaOfs, RWL\ÿ] IÐv¡ mzO. SWqt RrzS¨Laf]p]¤ W.P(c). 19437/09 jÒrLp] SWyV j¤WOWpOU, Bpf]jL¤ So¤ 22.07.2009&¤ jaÐ kµLp¾V WÚ]ã]p]Rs 6&LU jÒ¡ f}qOoLjU RRWRWLºO mzO. SWqt RRzS¨Laf]p]¤ yo¡Õ]¨OWpOºLp]. a] SWy] ¤ mzO. RRzS¨Laf]p]¤ 30.07.2009&¤ C¨Lq|U kµLp¾V kq]SwLi]\ÿV f}qOoLjU RRWRWLttOvL¢ D¾qvLWOWpOU DºLp]. kv¡NY]cV SWL¡kSrx¢ Ai]WQfqOU kµLp¾OU è}of]. Bj] oLf|Ov]R£ Nki]j]i]WtOU WPa] 20.08.2009&jV òsU yUpO© kq]SwLij ja¾OWpOU CT v]xp¾]¤ RRWRWLçLvOÐ jaka]W¥ yUmÌ]\ÿV v]whoLp] \¡\ÿ R\áOWpOoOºLp]. }lV oLSj^¡, kv¡NY]cV SWLrÕSrx¢, 16.10.2009&¤ j¤W]p Ref. No.SR-11 Koc TLC/F 592-1 jÒ¡ W¾]¤ kµLp¾]R£ j]¡SÇwNkWLqU avr]R£ lTSºx¢ SjqR¾fRÐ j]¡Ú]\ÿf]jL¤ BpfO oLã] òLk]¨OÐfV yLSËf]WWLqe°tL¤ ANkLSpLY}WoLReÐOU A°Rj R\pÅL¤ nLq]\ÿ yLÒ¾]W R\svV DºLWORoÐOU Ar]p]\ÿO. WPaLRf a]pL¥ kµLp¾]jV kWqU òsU j¤W] wÜwLjU oLã] òLk]¨OÐfO yUmÌ]\ÿ v]xp¾]¤ f}qOoLjRoaO¾V Ar]p]¨eRoÐOU An|¡À]\ÿO. CT yLz\q|¾]¤ kµLp¾V kW Y|LyV NW]o]SãLr]pU j]¡Ú]¨L¢ DSÇ|w]¨OÐ òs¾]jO kWqU SvRr òsS¾¨V BpfO oLã] òLk]\ÿL¤ BpfV RkLfO^j°¥¨V AyTWq|oOºL¨ORoÐOU CSÕLuR¾ òsU ^jvLyo]sæL¾fOU wÜwLj¾]jLp] vL°] p]ŸOç òsoLReÐV IsæLv¡¨OU Ar]pLvOÐf]jLsOU oãV jaka]W¥ y~}Wq]¨OÐfV kµLp¾]jV AkW}¡¾]¨OU wÜwLj j]¡oLe¾]jV AjOof] sn]¨OÐf]jV NkpLyU Sjq] aORoÐf]jLsOU ^jvLyU CsæL¾ òsU WRº¾OÐfV vtRq

¶76

WPC.No.6594 /2010

¶77

:6 :

¶78

mOÈ]oOŸLWpLsOU a]pL¥ j]¡SÇw]\ÿ òsU wÜwLj¾]jV yTWq|NkhoRsæÐOU BpfV If]¡Õ]jV WLqeoLWOWpOU yo} kvLy]W¥¨V BSqLY| NkwVj°¥, WOa]Rvç os]j}WqeU IÐ]v DºLWORoÐOU WLeOWpL¤ CSÕLuR¾ kµLp¾V vW òs¾O fRÐ wÜwLjU j]¡Ú]¨OÐfLp]q]¨OU An]WLo| RoÐV kµLp¾V RIW|We V Sbj f}qOoLj]\ÿO.”

¶79

However, the Panchayat did not issue any communication to the petitioner conveying its decision. It would appear that the Ist respondent issued Ext.P12 letter to the petitioner that the land offered and inspected by them and the Panchayat was unsuitable on account of technical limitations and that they have already finalised the alignment of transmission line based on the request and resolution passed by the Panchayat and in line with the statutory provisions. On this basis they stated that the line shall be drawn as permitted in Ext.P9 judgment.

¶80

On receipt of Ext.P12 letter, the petitioner replied to the fist respondent by Ext.P13, disputing the assertions made. She also reiterated that she was willing to offer 50 cents of land “anywhere at the choice of the Panchayat” for constructing the crematorium and for drawing electric line. She also expressed her willingness to execute necessary documents and transfer the land at the discretion

¶81

WPC.No.6594 /2010

¶82

:7 :

¶83

and within the time specified by the Panchayat. There was no response to Ext.P13, but while so the first respondent issued Ext.P14, enclosing notice under the Indian Telegraph Act, intimating the petitioner that the line will be drawn through the petitioner's property and damage to the extend indicated in the notice is likely to be caused. On receipt of Ext.P14, petitioners submitted Ext.P15, requesting for a reply to Ext.P13 and to refrain from proceeding with the work. Again she submitted Exts.P16 to the fist respondent and the Panchayat, reiterating her offer to make available another plot of land for setting up the crematorium and for drawing line.

¶84

There was no response to this letter either and in the circumstances this writ petition is filed with the prayers mentioned above.

¶85

The first respondent has filed a counter affidavit. According to the first respondent, the proposal made by the petitioner was not acceptable to the Panchayat and it was therefore that the first respondent issued Ext.P12 informing the petitioner that the 400 KV line shall be drawn in line with the directions in Ext.P9 judgment. Referring to Ext.R1(a) they also contend that they had no other

¶86

WPC.No.6594 /2010

¶87

:8 :

¶88

option than to shift the existing tower to the adjacent property of the petitioner solely for the reason that the 2^nd respondent Panchayat intended to build a crematorium in the land owned by it. According to the first respondent, the whole issue has arisen only because the land offered by the petitioner was not acceptable to the Panchayat for setting up a Crematorium, in which event only it need consider the feasibility of drawing the electric line through the plot offered by the petitioner.

¶89

Despite of service of notice by special messenger, Panchayat has not so far filed any counter in this writ petition. Referring to the resolution dated 29.10.2009, counsel for the Panchayat submits that the land offered was not suitable for the purpose of gas crematorium.

¶90

Although the learned counsel for the first respondent argued in detail regarding the importance of the project, necessity for its time bound completion and that private interest of the petitioner should yield to public interest, in the facts of this case, all that this court need be concerned is whether the directions in Ext.P9 judgment, which has become final and binding on the

¶91

WPC.No.6594 /2010

¶92

:9 :

¶93

parties in this writ petition, have been complied with. If the answer is in the affirmative, petition will have to be dismissed.

¶94

The first direction in the judgment is that the Panchayat

¶95

and the first respondent shall inspect the land offered by the petitioner and if the land offered satisfied the requirements under the Kerala Panchayat Raj(Burial and Burning Rules) 1998 (here-inafter referred to as the Rules) and the requirements of the first respondent, the land offered by the petitioner shall be accepted and the first respondent shall draw the line through the land offered. The resolution passed by the Panchayat has been extracted herein above. This resolution does not show that the plot offered by the petitioner has been found as not satisfying the requirement of the Rules. On the other hand, the resolution shows that the Panchayat was more concerned about the consequences, that a decision to shift the alignment can have on the first respondent. It is also stated that shifting of the location of the crematorium might cause inconvenience to the public and that it is difficult to get permission for setting up a crematorium in the new location.

¶96

WPC.No.6594 /2010

¶97

:10 :

¶98

In my view, these objections were not raised by the Panchayat at the time when the earlier writ petition was heard. Therefore it is not open to the Panchayat to raise these objections. That apart, if the plot offered by the petitioner satisfies the requirements of the Rules, the objections now pointed out by the Panchayat are irrelevant. Further the objections now raised are based only on he assumptions made by the Panchayat. Therefore the Ist direction in the judgment in so far as the plot offered by the petitioner has not been complied with by the Panchayat or the Ist respondent. The 2^nd direction in the judgment provides that if the plot offered by the petitioner is not suitable for for any reason, on being notified of the same, it will be open to the petitioner to offer alternate land. Panchayat has no case that on the passing of the resolution mentioned above, it has informed the petitioner that the plot offered is not acceptable. On the other hand all that the counsel for the Panchayat contended is that the unsuitability of land was conveyed by the first respondent by issuing Ext.P12. Even if this submission accepted at its face value, in response to Ext,P12 when the petitioner submitted Ext.P13 reply, she made a categoric

¶99

WPC.No.6594 /2010

¶100

:11 :

¶101

offer that she is willing to offer 50 cents of land anywhere from her property at the choice of the Panchayat. This was reiterated by the petitioner in Ext.P16. Nothing is placed on record by the Ist respondent or the Panchayat to indicate that anything has been done either by Panchayat or by the first respondent in pursuance to the alternate offer made by the petitioner. On the other hand counsel for the first respondent submits that in the meantime they had issued Ext.P14 notice and it was therefore that further action was not taken. In my view, that justification is totally unacceptable because both the Panchayat and the first respondent were bound by the directions in Ext.P9 judgment and when alternate offer was made, they ought to have considered that offer which was not done.

¶102

Therefore the proposal contained in Ext.P12 is in violation of the directions in Ext.P9 judgment and for that reason cannot be upheld. Therefore Ext.P12 is set aside. It is directed that Panchayat and the first respondent will inspect and consider the suitability of the land offered by the petitioner in Exts.P13 and P16 in the light of the directions in Ext.P9 judgment. It is made clear that if the plot

¶103

WPC.No.6594 /2010

¶104

:12 :

¶105

offered by the petitioner is found unsuitable, it will be open to the first respondent to proceed with drawing of line as allowed in Ext.P9 judgment itself.

¶106

Considering the urgency pointed out by the first respondent it is clarified that it will be open to the parties to

¶107

complete the process as expeditiously as possible.

¶108

Writ Petition is disposed of as above.

¶109

(ANTONY DOMINIC) JUDGE

¶110

vi/

Smt.Annie Mathew v. the Chief Manager(Tlc)

Case brief

What is this about?

What did the court decide?

Smt.Annie Mathew v. the Chief Manager(Tlc)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

A.Viswanathan Vs K.v.Subramanian

Jayakumar.S Vs State of Kerala

S.Doly Vs the State of Kerala

P.Prasad Vs Kerala Water Authority

Dr. K.J.Sharlet (Died) Vs the State of Kerala and Another

K.Jagadeesh Prasad Vs the Malabar Devaswom Board and Others