Partly allowed

Cochin Devaswom Board v. Sboa Public School Rep. by Its Principal

Kerala HC18 Oct 2013WP(C)/20948/2013

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions challenging an ADM's order permitting a school to lay an underground cable on a disputed road. The Court modified the order to accept an alternate transformer proposal to avoid drainage obstruction, allowing the cable through the road while reserving the Devaswom Board's right to seek future rectification of revenue records.

What did the court decide?

The order was modified to accept an alternate proposal (Ext.R2(b)) for the transformer location to avoid drainage obstruction, permitting the cable through the road for now.

Cochin Devaswom Board Vs Sboa Public… — Constitutional and Fundamental Rights | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935

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WP(C).No. 20948 of 2013 (P)

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PETITIONER:

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COCHIN DEVASWOM BOARD

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ROUND NORTH, THRISSUR-1, REPRESENTED BY ITS SECRETARY.

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BY ADV. SRI.V.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD

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RESPONDENTS:

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SBOA PUBLIC SCHOOL SOUTH CHITTOOR, KOCHI-682027 REPRESENTED BY ITS PRINCIPAL.

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THE KERALA STATE ELECTRICITY BOARD, ELECTRICAL SUB DIVISION, CENTRAL, ERNAKULAM REPRESENTED BY ITS ASST.EXECUTIVE ENGINEER.

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THE ADDL.DISTRICT MAGISTRATE, ERNAKULAM.

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R1 BY ADV. SRI.LAL K.JOSEPH R1 BY ADV. SRI.A.A.ZIYAD RAHMAN R1 BY ADV. SRI.V.S.SHIRAZ BAVA R2 BY ADV. SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-102013, ALONG WITH W.P.(C) No.21020/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 20948 of 2013 (P)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 TRUE COPY OF THE LETTER DATED 4-11-2011 SUBMITTED BY THE FIRST RESPONDENT.

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EXT.P2 TRUE COPY OF THE PROCEEDINGS OF THE BOARD.

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EXT.P3 TRUE COPY OF THE ORDER DATED 6.12.2012 OF THE THIRD RESPONDENT.

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EXT.P4 TRUE COPY OF THE REPRESENTATION DATED 8.12.2012 SUBMITTED BY THE DEVASWOM OFFICER.

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EXT.P5 TRUE COPY OF THE JUDGMENT DATED 9/1/2013 IN WP(C)29413 OF 2012.

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EXT.P6 TRUE COPY OF THE OBJECTION OF THE PETITIONER.

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EXT.P7 TRUE COPY OF THE ORDER OF THE THIRD RESPONDENT DATED 31.4.2013.

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EXT.P8 TRE COPY OF THE REPRESENTATION DATED 22.8.2013 SUBMITTED BY TE DEVASWOM OFFICER.

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EXT.P9 TRUE COPY OF THE ACKNOWLEDGMENT.

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EXHIBITS OF R2:

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EXT.R1 (a): TRUE COPY OF COMPUTERIZED ROUGH SKETCH REVEALING THE LIE OF THE ROAD AND THE TEMPLE PROPERTY

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EXT.R1 (b): TRUE COPY OF EXTRACT OF THER BASIC TAX REGISTER ISSUED BY THE VILLAGE OFFICER CHERANELLOOR PERTAINING TO PROPERTIES RESY.NO.291/1,2 AND RE-SY.NO.292/1 TO 8

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EXT.R1 (c): TRUE COPY OF THE ASSET REGISTER MAINTAINED BY THE CHERANELLOOR PANCHAYATH EVIDENCING THE EXISTENCE OF SBOA ROAD

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EXT.R1 (d): LAND TAX RECEIPTS NO.3080979 DT.21/3/12 IN THE NAME OF THE TRUST

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EXT.R1 (e): LAND TAX RECEIPTS NO.3108737 DT.25/2/12 IN THE NAME OF THE TRUST EXT.R1 (f): TRUE COPY OF RELEASE DEED NO.2936/87 EXT.R1 (g): TRUE COPY OF SALE DEED NO.2951/87

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EXT.R1 (h): TRUE COPY OF SALE DEED NO.2952/87

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WPC 20948/13

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EXHIBITS OF R2:

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ANNEXURE R2(a) : TRUE COPY OF THE ROUTE MAP BEFORE THE 3RD RESPONDENT

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EXT.R2(a) : TRUE COPY OF THE ROUGH SKETCH EXT.R2(b) : TRUE COPY OF THE ROUGH SKETCH

//True copy//

P.A.to Judge

uj.

T.R.RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ.

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W.P.(C).No.20948 OF 2013 AND W.P.(C).No.21020 OF 2013

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--------------------------------------------Dated 18^th October, 2013 JUDGMENT

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Ramachandran Nair,J

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These writ petitions have been filed challenging the order passed by Additional District Magistrate which is produced at Ext.P10 in W.P.(C) No.21020/2013 and Ext.P7 in other writ petition. Since both the writ petitions are concerned with the same subject matter, we dispose of both the matters together.

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W.P.(C) No.20948/2013 is filed by the Cochin Devaswom Board and W.P.(C) No.21020/2013 is filed by the Secretary of South Chittoor Sree

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WPC.20948/13 & 21020/13

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Krishna Swamy Temple Advisory Committee.

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We heard Sri.V.Krishna Menon and

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Sri.S.Subhash Chand, the learned counsel appearing for petitioners and Sri.Sajeev Kumar.K.Gopal, learned Standing Counsel appearing for Kerala State Electricity Board and Sri.Lal.K.Joseph, learned counsel appearing for S.B.O.A Public School for whose benefit the underground cable is to be drawn and Sri.R.Divakaran for the 8th respondent in W.P.(C) No.21020/2013.

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Shortly stated the facts are the

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following:- According to the pleadings in W.P.(C) No.20948/2013 the school authorities initially sought permission from the Devaswom Officer for laying underground cable for installing a transformer in the school compound as per Ext.P1, for which reply was

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WPC.20948/13 & 21020/13

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given as per Ext.P2 rejecting the said request and later the school authorities approached Kerala State Electricity Board and they together moved Additional District Magistrate, who passed Ext.P3 order. By the said order permission was granted to construct 11 KV under ground cable and installation of 100 KVA transformer with certain modifications. The said order was set aside by Ext.P5 judgment of this Court in W.P. (C) No.29413/2012 whereby this Court directed the matter to be reconsidered after hearing all the parties including respondents 1,2 and 4 in the said writ petition. Thereafter, the Devaswom Board filed a written objection which is produced as Ext.P6 and the consequent order passed by Additional District Magistrate is produced as Ext.P7. After rejecting the

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WPC.20948/13 & 21020/13

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objection of Devaswom Board, the Additional District Magistrate granted permission to the school authorities for drawing the underground cable. The proceedings shows that at the time of hearing, the Secretary of Cheranelloor Grama Panchayath and Cheranelloor Village officer were present.

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Petitioners have approached this Court mainly stating that all the aspects pointed out by the petitioners have not been considered by the Additional District Magistrate. It is pointed out by the learned Standing counsel for Devaswom Board and learned counsel appearing for the petitioner in W.P.(C) No.21020/2013 that actually the road is part of the Devaswom property and therefore, their objections should have been accepted. It is submitted that

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WPC.20948/13 & 21020/13

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proceedings are pending before Tahsildar to correct the revenue and Re-survey records. A report has been submitted by Special Tahsildar before the Court as Ext.P5 produced in W.P.(C) No.21020/2013 pursuant to the report of the Ombudsman in D.B.P.43/2013.

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The order passed by the Additional District Magistrate mentions that the road is maintained by Panchayath. Sri.S.Subhash Chand, learned counsel for the petitioner in W.P.(C) No.21020/2013 submitted that being Temple property, the views of the authorities of the Temple ought to have been considered and accepted. It is also submitted that the school can draw line through the alternate route and this aspect was not considered by the Additional District Magistrate. It is also the

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WPC.20948/13 & 21020/13

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contention of Sri.Subhash Chand that in spite of the direction in the judgment of this Court in Ext.P5, notice was not issued to the petitioner in W.P.(C) No.21020/2013. These contentions are opposed by Sri.Lal.K.Joseph, the learned counsel appearing for S.B.O.A Public School. According to him, there will not be any inconvenience for the Temple as well as other structures of the temple and the road is being used by the school as well as nearby residents. Additional District Magistrate had taken views of the Panchayath as well as the Village Officer before entering into the relevant findings. It is submitted by the learned Standing Counsel for the Electricity Board that the cable is drawn through middle of the road at a depth of 1.2 meters and it will not interfere with any of the

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WPC.20948/13 & 21020/13

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works which are envisaged by Devaswom Board to be executed in future.

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In the light of the serious disputes between parties, this Court appointed Sri.K.R.Avinash as Advocate Commissioner and directed to submit a report and sketch and to ascertain as to whether there is any alternate route to draw the underground cable. The Electricity Board has taken the stand before the Advocate Commissioner that the alternate route is not feasible.

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After elaborately hearing the parties, this

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Court directed the learned Standing Counsel for the Electricity Board to submit a proper sketch showing the routes through which the cable is proposed to be drawn and also directed to submit alternate proposal

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WPC.20948/13 & 21020/13

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for locating the transformer. This was ordered in the light of the submission made by the learned counsel for the petitioners that the construction of the drainage will be affected by drawing of the cable and it was further submitted that the drainage will have to be constructed upto the pit near Arattukadavu and drawing of line will cause obstruction to the proper construction of the drainage. Exts.R2(a) and R2(b) are the alternate proposals submitted by Assistant Executive Engineer, Kerala State Electricity Board along with an affidavit dated 17/10/2013, in W.P.(C) 20948/2013.

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We have considered the arguments in detail. As of now, the cable is ordered to be drawn through a road which is used by school authorities,

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WPC.20948/13 & 21020/13

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Temple authorities as well as nearby residents. Of course, the contention of the learned Standing Counsel for Cochin Devaswom Board is that ultimately when the land which is included in Old survey No.589/1 is earmarked for Devaswom, drawing of line will affect the rights of the Devaswom Board.

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Since it is submitted by the Standing Counsel for Kerala State Electricity Board that the underground cable is proposed to be drawn through the middle of the road, we are of the view that drawing

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of the same will not cause any hindrance to the proposals for execution works by the Temple especially since the area through which the line is proposed to be drawn is now used as a road. In that view of the matter, the order passed by the Additional District

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WPC.20948/13 & 21020/13

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Magistrate permitting the school authorities to draw the cable warrants no interference. But with regard to the location of the transformer, it is seen that the earlier proposed location will cause obstruction to the Temple authorities to construct drainage. The counsel for the school also submitted that the transformer can

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be relocated. We are of the view that the proposal as per Ext.R2(b) can be accepted as it will not cause any hindrance to the Temple authorities in executing their proposal especially, overhead lines are to be provided. As per the said proposal, HT posts will be erected on the existing line (LT) and overhead crossing lines will be drawn with sufficient height. The location of the Transformer is within school compound. For the above reasons, we accept Ext.R2(b) proposal as such.

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WPC.20948/13 & 21020/13

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It is made clear that the order passed

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above will not stand in the way of Devaswom Board pursuing their application before Revenue authorities with regard to the change of correction of Re-survey records. It is also made clear that we have not expressed anything on the rights of the parties with regard to the area in question. We have issued the above directions after considering the state of affairs

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as on today. In future, if the Devaswom Board proposes any plan for construction of drainage and if it is found that the cable now proposed to be drawn through the road will cause any hindrance to the same, we permit the Cochin Devaswom Board to move the concerned authority of the Electricity Board who will shift the line at the expense of the school

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WPC.20948/13 & 21020/13

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authorities, which is agreed to by the learned counsel appearing for S.B.O.A Public School.

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Writ petitions are disposed of accordingly. Order passed by Additional District Magistrate (Ext.P7 in W.P.(C) No.20948/2013) will stand modified to the

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extent, ordered as above. No costs.

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(T.R.RAMACHANDRAN NAIR) JUDGE.

(B.KEMAL PASHA)

JUDGE.

uj.

The words “ for the 8^th respondent ” occurring in the last line of paragraph 3 at page 2 of the common judgment dated 18/10/2013 in W.P.(C) Nos.20948/2013 and 21020/2013 are corrected and substituted as “for the additional 9^th respondent” , vide order dated 11/11/2013 in W.P.(C) No.21020/2013.

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sd/Registrar (Judicial)

Cochin Devaswom Board v. Sboa Public School Rep. by Its Principal

Case brief

What is this about?

What did the court decide?

Cochin Devaswom Board v. Sboa Public School Rep. by Its Principal

Case brief

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