Dismissed

V.G.Janardhanan Nair v. State of Kerala

Kerala HC21 Aug 2017WP(C)/22557/2017

Case brief

AI extract

What is this about?

Petitioners challenged an ADM order permitting an electricity line through their properties, alleging it breached a prior order mandating an alternate route. The court held the sketches were consistent and the alternate route was technically infeasible, dismissing the writ petition.

What did the court decide?

The writ petition challenging the Additional District Magistrate's order permitting the electric line routing was dismissed.

V.G.Janardhanan Nair Vs State of Kerala — Municipal and Town Planning | Kerala HC (2017)

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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 A.K.JAYASANKARAN NAMBIAR

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MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939

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WP(C).No. 22557 of 2017 (T)

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PETITIONER(S):

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1. V.G.JANARDHANAN NAIR,

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AGED 70 YEARS, S/O. GOVINDAN NAIR, RESIDING AT THARAPPEL HOUSE, VAYALA P.O, KADAPLAMATTOM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 587.

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2. GEETHA G MENON, AGED 53 YEARS, W/O. JANARDHANAN NAIR, THARAPPEL HOUSE, VAYALA P.O, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 587.

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3. MARY KUTTY LUKOSE,

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AGED 58 YEARS, W/O. SURESH PETER, PALLATU HOUSE, VAYALA P.O- 686587, KADAPLAMATTOM, PANCHAYATH, KOTTAYAM DISTRICT.

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4. RAJU,

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S/O. THANKAMMA NEELAN, KOCHUPARAMBIL HOUSE, VAYALA P.O, 686587, KADAPLAMATTOM, PANCHAYATH, KOTTAYAM DISTRICT.

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5. JOSHY T.J,

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AGED 40 YEARS, S/O. JOSEPH, THAZHATHU MUDACKALIL HOUSE, VEMPALLY P.O, KOTTAYAM DISTRICT - 686 633

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6. SUNNY JOSEPH,

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AGED 45 YEARS, S/O. A.C JOSEPH, ARUKAKKIL HOUSE, VAYALA P.O, KOTTAYAM DISTRICT - 686 587.

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7. SIBY JOSEPH,

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AGED 32 YEARS, S/O. A.C JOSEPH, ARUKAKKIL HOUSE, VAYALA P.O, KOTTAYAM DISTRICT - 686 587.

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WP(C).No. 22557 of 2017 (T)

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8. K.R GIRIJAMMA,

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AGED 42 YEARS, W/O. K.N, VIMAL KUMAR, KOOTTUMALA HOUSE, VAYALA P.O ,KOTTAYAM DISTRICT - 686 587.

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9. MANOJ P., AGED 40 YEARS,S/O. LATE PEETHAMBARAN, OZHUKAYIL HOUSE,VEMPALLY P.O, KOTTAYAM DISTRICT - 686 633.

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10. K.N. MOHANDAS, AGED 59 YEARS, S/O. LATE K.A NARAYANAN, KOOTTUMALA HOUSE, VAYALA P.O, KOTTAYAM DISTRICT - 686 587.

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BY ADVS.SRI.N.SUKUMARAN (SR.) SMT.RAJESWARI KRISHNAN SMT.SEEMA KRISHNAN SRI.M.PRAVEESH SRI.M.P.KRISHNAN NAIR

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. THE DISTRICT COLLECTOR, KOTTAYAM, COLLECTORATE P.O, KOTTAYAM - 686 002.

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3. THE DEPUTY COLLECTOR(GENERAL) & ADDITIONAL DISTRICT MAGISTRATE ,KOTTAYAM, COLLECTORATE P.O, KOTTAYAM - 686 002.

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4. THE CHAIRMAN,

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KERALA STATE ELECTRICITY BOARD. VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004.

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5. M/S. POWER GRID CORPORATION OF INDIA LTD, CONSTRUCTION AREA OFFICE, 400/220 KV KOCHI SUB STATION, KUMARAPURAM P.O, PALLIKKARA , ERNAKULAM DISTRICT - 683 565. REP. BY ITS DEPUTY GENERAL MANAGER.

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WP(C).No. 22557 of 2017 (T)

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6. THE PROJECT ENGINEER, SPECIAL TASK FORCE, 400 K.V LINE CONSTRUCTION, THIRUVALLA, PATHANAMTHITTA DIST - 689 101.

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7. THE SECRETARY, KADAPLAMATTOM GRAMA PANCHAYAT, KADAPLAMATTOM, KOTTAYAM DISTRICT - 686 587.

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R1 TO R3 BY GOVERNMENT PLEADER SRI.P.C.PRADEEP R4 & R6 BY SRI.SUDHEER GANESH KUMAR R., SC R5 BY ADV. SRI.MILLU DANDAPANI,SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22557 of 2017 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE ORDER DATED 06-01-11 OF THE 3RD RESPONDENT

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EXHIBIT P2 TRUE COPY OF THE RESOLUTION NO.III DATED 23-02-2017 OF THE 7TH RESPONDENT

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EXHIBIT P3 TRUE PHOTOGRAPHS SHOWING SOME OF THE MARKINGS MADE ON THE TREES OF THE PETITIONERS

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EXHIBIT P4 TRUE COPY OF THE GOOGLE MAP SHOWING TOWER MARKINGS MADE BY THE RESPONDENTS.

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EXHIBIT P5 TRUE PHOTOGRAPHS OF 11 KV LINE SHOWING THAT WHICH PASSES THROUGH THE PADDY FIELD

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EXHIBIT P6 TRUE COPY OF THE LETTER DATED 06-03-17 ISSUED BY THE KSEB TO THE 1ST PETITIONER.

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EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS ON 24-03-2017.

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EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 12.4.2017 OF THIS HON'BLE COURT IN WRIT PETITION (C) NO. 11781/2017.

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EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DATED 18.4.2017 IN WA NO. 827/2017

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EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH DATED 6.6.2014.IN W.A NO. 827/2017.

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EXHIBIT P11 TRUE COPY OF THE PETITION FOR CLARIFICATION IN W A NO 827/2017.

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EXHIBIT P12 TRUE COPY OF THE ORDER NO. DCKTM/4356/17/HG.K.DIS, DATED 28.6.2017 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P13:- TRUE COPY OF THE SKETCH PRODUCED BY TH 5TH RESPONDENT IN THE EARLIER PROCEEDINGS SHOWING THE ALTERNATIVE ROUTE TO DRAW THE PROPOSED LINE.

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WP(C).No. 22557 of 2017 (T)

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EXHIBIT P14:- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE ADM.

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EXHIBIT P15:- TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONERS BEFORE THE ADM.

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RESPONDENT(S)' EXHIBITS

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EXHIBIT R5(A):_ TRUE COPY OF THE GAZETTE NOTIFICATION DATED 27.11.2003 PUBLISHED VIDE GAZETTE OF INDIA NO.1084 DATED 4.12.2003.

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EXHIBIT R5(B):- TRUE COPY OF THE NOTIFICATION DATED 24.12.2003.

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EXHIBIT R5(C):- TRUE COPY OF THE GOOGLE MAP INDICATING THE ROUTE OF KUDANKULAM-THIRUNELVELI-UDUMALPET-THRISSUR- KOCHIEDAMON.

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EXHIBIT R5(D):- TRUE COPY OF THE ORDER NO. K.DIS.116/36048/10 OF ADDITIONAL DISTRICT MAGISTRATE. KOTTAYAM DATED 06.1.2011.

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EXHIBIT R5(E):_ TRUE COPY OF THE GOVERNMENT ORDER G.O(MS)NO,29/2015 /PD DATED 30.7.2015.

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EXHIBIT R5(F):- TRUE COPY OF THE REPLY GIVEN TO DISTRICT COLLECTOR/KOTTAYAM, WITH COPY TO M/S.KSEB DATED 04.04.2017.

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EXHIBIT R5(G):- TRUE COPY OF THE LETTER ISSUED BY POWER GRID CORPORATION OF INDIA LTD, TO THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOTTAYAM NO.SR-II/KOC/TLC/F-497/2706 DATED 21.12.2010.

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EXHIBIT R5(H):- TRUE COPY OF THE JUDGMENT OF THE HON'BLE APEX COURT IN CIVIL APPEAL NO.10951 OF 2016 ARISING OUT OF S.L.P(C) NO.34382 OF 2010 DATED 14.12.2016.

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EXHIBIT R5(I):- TRUE COPY OF THE LETTER OF STATE PUBLIC INFORMATION OFFICER AND JUNIOR SUPERINTENDENT (H),COLLECTORATE, KOTTAYAM AND THE SKETCH ISSUED BY THE OFFICE OF ADM, KOTTAYAM.

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EXHIBIT R5(J):_ TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN WP(C)NO.22382 OF 2013(W).

/TRUE COPY/

PS TO JUDGE

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C).NO.22557 OF 2017 (T)

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Dated this the 21^st day of August, 2017

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J U D G M E N T

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The petitioners have approached this Court aggrieved by Ext.P12 order of the Additional District Magistrate [ADM], by which, the said ADM granted permission to the 5^th respondent, to draw a 400 KV line through the properties of the petitioners. The grievance in the writ petition essentially centres around a route sketch that was preferred in connection with Ext.P1 order, that was passed by the ADM in 2011, whereby, the said authority, acting in accordance with the powers under Section 16(1) of the Indian Telegraph Act, accorded sanction for drawing the 400 KV transmission line through a paddy field, as an alternative to drawing the line through a stretch which would pass through the private properties of various persons. In the present writ petition, it is the case of the petitioners that, acting contrary to the directions in Ext.P1 order, the 5^th respondent has now proposed the drawing of the electric line through the properties of the petitioners, by avoiding the stretch that would take the line through the paddy field. It is further stated that, the action of the 5^th

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W.P.(C).No.22557/2017

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respondent, in introducing a new sketch, different from the sketch that formed the basis of Ext.P1 order, is a fraudulent act, and the 5^th respondent ought not to be permitted to draw the line in accordance with the said sketch. I note, in this connection that, raising the very same allegations , the petitioners had earlier approached this Court through W.P.(C).No.11781/2017, when, a learned Single Judge had, taking note of the dispute that was pointed out by the petitioners in connection with the sketch that was approved by the ADM, in Ext.P1 order, directed the ADM to verify whether the sketch, on the basis of which the 5^th respondent was drawing the line through the property of the petitioners, was the very same sketch that was produced along with Ext.P1 order. Aggrieved by the said decision of the learned Single Judge, the petitioners herein approached the Division Bench, through W.A.No.827/2017, which was disposed by Ext.P10 judgment, wherein, the Division Bench, after taking note of the contentions, directed as follows:

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“4. On hearing the counsel for both sides, we find that a sketch has since been produced before this court as Ext.R5(d), which according to the fifth respondent is the sketch on the basis of which Ext.P1 order was passed. Though the sketch is also produced by the learned Government Pleader along with his file, the authenticity thereof is seriously disputed by the appellants. According to us, this dispute cannot be resolved by this

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W.P.(C).No.22557/2017

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court and on the other hand, this is a dispute which should be resolved by the third respondent, when the parties appear before him as directed by the learned Single Judge.

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In such circumstances, we dispose of the writ appeal directing that as agreed by all the parties including the Government Pleader, the appellants and respondents 5 and 6 shall appear before the third respondent on 14.6.2017 at 11 a.m. in his office. Thereupon, the third respondent shall hear the parties and pass orders immediately in compliance with the directions contained in paragraph 3 of the judgment under appeal.

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With this direction, the appeal is disposed of. The appellants or respondents 5 and 6 shall produce a copy of this judgment before the third respondent for information and compliance.”

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Ext.P12 order of the ADM, that is impugned in these proceedings, is the order passed by the said Magistrate, pursuant to the directions in Ext.P10 judgment of the Division Bench. The ADM, after going through the sketch produced before him by the 5^th respondent, and the sketch that was available in the files of the Government, found that both the sketches were the same, and further that, accepting the contention of the petitioners for drawing the line through an alternate route would involve taking the line through a circuitous route, which was not technically feasible, and would involve

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W.P.(C).No.22557/2017

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further expenses, as far as the 5^th respondent was concerned. The ADM therefore granted permission to the 5^th respondent to draw the line through the route that was proposed, by Ext.P12 order. As already noted, Ext.P12 order is impugned by the petitioners herein inter alia on the ground that the 5^th respondent has effectively breached the terms of Ext.P1 order, by drawing the line through the property of the petitioners.

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A counter affidavit has been filed on behalf of the 5^th respondent, disputing the various factual averments which are made against it in the writ petition. In particular, it is maintained in the counter affidavit that the sketch that was produced, showing the route alignment, was the same sketch as informed Ext.P1 order that was passed by the ADM earlier. It is stated that Ext.P1 order dealt with the area between posts bearing Nos.208A/0 and 208E/0, which goes through a paddy field, and the property of the petitioners is essentially between post Nos.208E/0 and 210/0. It is pointed out that while Ext.P1 order of the ADM mentions the changed alignment through the paddy field, the said alignment does not refer to the stretch covering the properties of the petitioners which fall beyond

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W.P.(C).No.22557/2017

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the post numbered as 208E/0. It is stated that, when it comes to the alignment of the line, after the post bearing No.208E/0, on account of the line crossing a road, the technical feasibility required the line to be drawn at an angle of 90⁰ to the road, and hence, the line had to be taken through private properties, including the properties of the petitioners herein. It is stated that, there would be no transmission tower put up in the properties of the petitioners, and the properties of the petitioners will be affected only to the extent they fall within the peripheral areas of the lines passing overhead the properties in question.

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I have heard Sri. M.P. Krishnan Nair, the learned counsel for the petitioners, Sri. P.C. Pradeep, the learned Government Pleader for the official respondents of the State as also Sri. Millu Dandapani, the learned Standing counsel for the 5^th respondent.

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On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that essentially the dispute between the petitioners on the one hand and the 5^th respondent on the other hand, with regard to the sketch that formed

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W.P.(C).No.22557/2017

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the basis of Ext.P1 order, proceeds on an erroneous appreciation of the actual location of the petitioners' property, vis-a-vis, the sketch that was produced along with Ext.P1 order. The reference to the drawing of a line through the paddy field is a reference to the line drawn from posts bearing Nos.208A/0 to 208E/0. The petitioners' properties on the other hand, fall between posts bearing Nos.208E/0 and 210/0. In the latter stretch, the necessity for drawing the lines along an alignment that stood perpendicular to the road which was crossed, mandated that the line necessarily crossed the properties of the petitioners, since, the adherence to the 90⁰ angle prevented the 5^th respondent from drawing the line through the neighbouring paddy fields. The reference in Ext.P1 order, which speaks of an alignment through the paddy field, is clearly a reference to the line between posts bearing Nos.208A/0 and 208E/0, which, even as per the changed alignment, passes through the paddy field. I am therefore of the view that Ext.P12 order of the ADM, to the extent, it recognises that the sketches that were produced by the Government, as also by the 5^th respondent, before this Court, when Ext.P10 judgment was passed by the Division Bench, are substantially the same, does not call for any interference from this Court in these proceedings under

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W.P.(C).No.22557/2017

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Article 226 of the Constitution of India. As rightly observed by the Division Bench, in Ext.P10 judgment, the dispute with regard to the identity of the sketches is not one that can be resolved by this Court, and it is therefore that the Division Bench thought it appropriate to direct the ADM to go through the sketches to resolve the dispute. The ADM, having found that the sketches are one and the same, and further that the alternate route suggested by the petitioners was not technically feasible for the reasons already stated, I am of the view that Ext.P12 order does not call for any interference by this Court in these proceedings. Resultantly, the writ petition, in its challenge against Ext.P12 order, fails, and is accordingly dismissed.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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prp/22/8/17

V.G.Janardhanan Nair v. State of Kerala

Case brief

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V.G.Janardhanan Nair v. State of Kerala

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