Dismissed

Naduthodi Kunjimuhammed v. Additional District Magistrate

Kerala HC27 Nov 2018WP(C)/39959/2015

Case brief

AI extract

What is this about?

The Bench rejected an objection to drawing an overhead electric line for an educational institution near a road the petitioner alleged was constructed by encroachment. The court held denying power pending civil suit resolution would be unfair and directed the Board to proceed.

What did the court decide?

The writ petition is dismissed; KSEB permitted to draw electric line per Obj.P5 order.

Naduthodi Kunjimuhammed Vs Additional District Magistrate — Specific Performance | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE V.G.ARUN

¶4

TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940

¶5

WP(C).No. 39959 of 2015

¶6

PETITIONER:

¶7

NADUTHODI KUNJIMUHAMMED AGED 83 YEARS

¶8

S/O.LATE MUHAMMED HAJI, NAUTHODI HOUSE, P.O., MELMURI, MALAPPURAM DISTRICT.

¶9

BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI

¶10

RESPONDENT:

¶11

1 ADDITIONAL DISTRICT MAGISTRATE MALAPPURAM DISTRICT-676 505.

¶12

2 ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD SUB DIVISION, MALAPPURAM DISTRICT-676 505.

¶13

3 PRIYADARSINI DEVELOPMENT CENTRE MELMURI P.O., MALAPPURAM DISTRICT,PIN-676 517, REPRESENTED BY ITS GENERAL SECRETARY, MELMURI P.O- 676517.

¶14

Addl.R 4 NADUTHODI AVARAN S/O.LATE MUHAMMAD HAJI, NAUTHODI HOUSE, P.O.MELMURI, MALAPPURAM DISTRICT.

¶15

Addl.R 5 ABDUL KAREEM S/O.LATE MUHAMMAD HAJI, NAUTHODI HOUSE, P.O.MELMURI, MALAPPURAM DISTRICT.

¶16

Addl.R 6 ABDUL AZEEZ S/O.LATE MUHAMMAD HAJI, NAUTHODI HOUSE,

¶17

W.P.(C) 39959/2015

¶18

-2-

¶19

P.O.MELMURI, MALAPPURAM DISTRICT.

¶20

Addl.R 7 SAINABA D/O.LATE MUHAMMAD HAJI, NAUTHODI HOUSE, P.O.MELMURI, MALAPPURAM DISTRICT.

¶21

Addl.R 8 PATHUMMA D/O.LATE MUHAMMAD HAJI,NAUTHODI HOUSE, P.O.MELMURI, MALAPPURAM DISTRICT.

¶22

Addl.R 9 RUKKIYA D/O.LATE MUHAMMAD HAJI,NAUTHODI HOUSE, P.O.MELMURI, MALAPPURAM DISTRICT.

¶23

BY ADVS. GOVERNMENT PLEADER SRI.M.KRISHNAKUMAR SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BO SRI.SUDHEER GANESH KUMAR R. SC KERALA STATE ELECTRICITY BO SRI.T.SAJI

¶24

OTHER PRESENT:

¶25

GP-SRI SURIN GEORGE IYPE.

¶26

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) 39959/2015

-3-

JUDGMENT

The writ petition is filed aggrieved by Ext.P5 order issued by the first respondent in exercise of the power conferred under Section

¶31

16(1) of the Indian Telegraph Act. By the impugned order, the first respondent rejected the objection raised by the petitioner against the drawing of an electric line for providing power connection to the Self-financing Educational Institution being conducted by the third respondent.

¶32

2. The petitioner submits that he is the owner in possession of 2.74 acres of land in ReSy.No.314, 269/1A in Melmuri Village. It is submitted that a PWD Road was illegally constructed encroaching into the petitioner's property. Against the illegal construction, the petitioner filed O.S.No.109 of 2007 before the

¶33

Munsiff's Court, Manjeri seeking mandatory

¶34

W.P.(C) 39959/2015

¶35

-4-

¶36

injunction, requiring the defendants therein to restore the portion of the road passing through the petitioner's property to its original state. The petitioner contends that the illegality already committed would be perpetuated if the electric line is drawn through his property, on the premise that it is a PWD road.

¶37

3. The objection raised by the petitioner was considered by the first respondent after conducting a site inspection. The road in question is called the "Melmuri-Priyadarsini college road", which starts from the National Highway and leads upto the Educational Institution of the third respondent.

¶38

4. During the course of hearing by the first respondent, it was pointed out by the

¶39

petitioner that there is a pathway in existence (edavazhi) on the northern side of the road and

¶40

that the line can be drawn by taking a short

¶41

W.P.(C) 39959/2015

¶42

-5-

¶43

deviation from the disputed area, which would require only erection of one additional electric post. This suggestion was also considered by the first respondent based on the report of the Village Officer, wherein it was stated that no pathway as suggested by the petitioner is in existence. Yet another alternative suggestion made on behalf of the petitioner is that the electric connection to the institution of the third respondent can be provided from the transformer from which the connection is being provided to the Al-Ameen Stone Crusher Unit. This alternative suggestion made during the course of argument was verified through the officials of the KSEB.

¶44

5. A memo has been filed by the Standing Counsel for the KSEB stating that in order to draw Over Head line from the Al-Ameen Stone Crusher Unit to the educational institution of

¶45

W.P.(C) 39959/2015

¶46

-6-

¶47

the third respondent, consent of around 10 private land owners are required and it would entail in cutting of trees. It is also pointed out that there are number of quarries operating in the proposed route and there is no existing pathway or public road along that route. It is further pointed out that the land through which the route is proposed is rocky and is a steep terrain and therefore, drawing of electric line along that route is practically not feasible on technical, safety as well as financial grounds.

¶48

6. Along with the counter affidavit filed by the third respondent, documents have been produced to prove that the Melmuri-Priyadarsini college road was constructed by the PWD, expending huge amounts from the Government exchequer. Ext.R3 (A) is the work order/agreement issued by the Executive Engineer, PWD Roads Division, Manjeri dated 2.7.2013. Ext.R3(B) has

¶49

W.P.(C) 39959/2015

¶50

-7-

¶51

been produced to prove that amounts had been expended for the construction of drainage and sidewall to the Melmuri-Priyadarsini college road. Ext.R3 (C) would prove that in the year 2015, the Government of Kerala had sanctioned funds for the maintenance of the MelmuriPriyadarsini college road.

¶52

7. It is an undisputed fact that the PWD Road is in existence and that the proposed electric line is to be drawn by the side of that road. The objection of the petitioner is for the reason that a portion of the PWD road has been constructed by encroaching into his property and that as evident from Ext.P1 judgment, the jurisdictional court has decreed the suit filed by the petitioner in his favour, permitting the petitioner to recover the encroached portion and also directing the defendants in the suit to restore that portion into its original state. It

¶53

W.P.(C) 39959/2015

¶54

-8-

¶55

is pointed out by the learned counsel for the third respondent and not disputed by the learned counsel for the petitioner that, as against Ext.P1 judgment, the defendants in the suit had filed A.S.No.5 of 2014 before the Sub Court, Manjeri and that in the appeal, Ext.P1 judgment was set aside and the matter remanded to the Munsiff's Court for fresh consideration. Therefore, as on date, the question as to whether a portion of the PWD has been constructed by encroaching into the petitioner's property is undecided.

¶56

8. In such circumstances, to deny the power connection to the Educational Institution till the issue in the suit is finally decided would be unjust and unfair. Since the competent Authority has pointed out that no alternative route is in existence for drawing the electric line, the only option available to the Board is to provide

¶57

W.P.(C) 39959/2015

¶58

electric connection to the third respondent by drawing the line as approved by Ext.P5. Therefore the challenge against Ext.P5 fails and the KSEB is permitted to draw the electric line in accordance with the findings in Ext.P5. Needless to say that drawing of such electric line would not affect the civil rights of the parties, which is the subject matter of consideration before the competent civil court.

¶59

The writ petition is disposed of with the

¶60

above observation.

Sd/-

V.G.ARUN

JUDGE

Scl.27.11

W.P.(C) 39959/2015

-10-

APPENDIX

PETITIONER'S/S EXHIBITS:

¶69

EXHIBIT P1 EXT.P1. TRUE COPY OF THE JUDGMENT IN OS NO.109/2007 OF MC, MANJERI. EXHIBIT P2 EXT.P2. TRUE COPY OF SKETCH OF THE PROPERTY WITH LETTER OF VILLAGE OFFICER, MELMURI.

¶70

EXHIBIT P3 EXT.P3. TRUE COPY OF THE JUDGMENT IN WPC NO.21695/2014.

¶71

EXHIBIT P4 EXT.P4. TRUE COPY OF THE OBJECTION DATED 31/12/2014. EXHIBIT P5 EXT.P5. TRUE COPY OF THE ORDER DATED 23/11/2015. EXHIBIT P6 EXT.P6. TRUE COPY OF PLAN SUBMITTED BY THE K.S.E.B

¶72

RESPONDENT'S EXHIBITS:

¶73

R3 A TRUE COPY OF THE WORK ORDER DATED 2.7.13 FOR THE MELMURI-PRYADARSINI COLLEGE ROAD.

¶74

R3 B TRUE COPY OF THE WORK ORDER DATED 2.8.18 FOR THE MELMURI-PRYADARSINI COLLEGE ROAD.

¶75

R3 C TRUE COP Y OF THE GOVERNMENT ORDER DATED 18.9.2015 ALLOTING FUNDS FOR ROAD MAINTENANCE.

Naduthodi Kunjimuhammed v. Additional District Magistrate

Case brief

What is this about?

What did the court decide?

Naduthodi Kunjimuhammed v. Additional District Magistrate

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Kerala Adhivasi Development Society Vs State of Kerala

Ajith A.S. Vs the Union of India

G.Chandra Babu Vs Corporation of Thiruvananthapuram

Suseela P Vs State of Kerala

P.a.Mohammed Sageer Vs the State of Kerala, Represented by Secretary, Taxes, Govt. of Kerala

Paul Varghese Vs the Secretary, Thrikkakara Panchayath