A petition challenging the District Magistrate's permit for upgrading an 66 KV to 220 KV line on private property. The court held that technical feasibility lies with authorities and the DM acted judicially after hearing parties finding no malafides or perversity.
Writ petition dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941
WP(C).No.1619 OF 2020(B)
PETITIONER :
SAROJ.C. AGED 52 YEARS W/O.LATE JOHN VICTOR, VICTOR VILLA, KALLUVETTAN KUZHI, VENGANOOR P.O., VIZHINJAM, THIRUVANANTHAPURAM-695 523. BY ADVS. SRI.AYYAPPAN SANKAR SMT.S.HRIDYA SRI.JAYAN JOHN
RESPONDENTS :
1 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695 035.
2 THE ADDITIONAL DISTRICT MAGISTRATE, DEPUTY COLLECTOR (GENERAL), COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695 043.
3 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY ITS CHAIRMAN, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.
5 PROJECT MANAGER, VIZHINJAM INTERNATIONAL SEAPORT, OFFICE OF THE PROJECT MANAGER, KATTACODE P.O., KATTAKADA, THIRUVANANTHAPURAM-695 572.
R3-4 BY ADV. SRI.K.M.SATHYANATHA MENON R3-4 BY ADV. SMT.KAVERY S THAMPI
SRI SUDHEER GANESH KUMAR SC, SRI RON BASTIAN SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner, a widow and the mother of a disabled son, is the owner of property having an extent of 14 cents in Re-Survey No.155/1-6 in Vizhinjam Village. According to the petitioner, the respondents with a view to upgrade the existing 66 KV line passing over her property to a 220 KV line, is intending to indiscriminately cut and remove 70 yielding trees situated in her property without even proposing to pay reasonable compensation for the same as contemplated by the provisions of the Indian Telegraph Act, 1885 and the Electricity Act, 2003. It is further contended that the line is being drawn in such a manner as to cause extensive damages to her property. Pursuant to orders passed in a Writ Petition filed by her, the dispute was referred to the 1st respondent by this Court. However, the 2nd respondent, in an arbitrary manner and without taking note of the facts and circumstances, permitted the 4th respondent to draw the line as per the route proposed by them on the ground that the said route is the most feasible one. It is in the aforesaid circumstances that she has approached this Court and filed this Writ Petition seeking the following reliefs:
i) issue a writ of certiorari quashing Exhibit-P5 and all proceedings culminating therein and pursuant thereto;
ii) Issue a writ of mandamus commanding respondents 3 and 4 to
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draw the proposed 220 KV electric transmission lines, in such a manner causing least risk and loss to the petitioner and to draw the lines through the same property over which the existing 66 KV electric transmission lines are drawn, to the extent possible
iii) Issue a writ of mandamus commanding respondents 1,3 and 4 to assess and pay adequate compensation to petitioner, for her property as well as the trees and also for the loss of income and shelter, before cutting of trees from petitioner's property and drawing of lines across her property”
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towers. The foundation works for all the 92 locations and 90% of the stringing works have been completed. The petitioner’s property comes within tower locations 27 and 28 in the existing Balaramapuram – Vizhinjam 66 KV power line, which is now being enhanced to 220 KV. It is further stated that the trees that are to be cut and removed have been earmarked and also that no towers are proposed to be erected in the petitioner’s property. It is stated that the proposed 220 KV line is constructed with extra height in order to minimize the damages and therefore construction of buildings would be permitted by maintaining the statutory clearance. The land below the line can also be used for agricultural purposes for planting shrubs, plantains, tapioca and vegetables.
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thereunder is to be in the interests of the general public, and when so exercised, the restrictions that are imposed on the property owners cannot be said to be unreasonable. (see Indu Chandran and Ors. v.
KSEB, Tvm and Others1 ) .
6. Before considering the precedents cited by both sides, it has
to be borne in mind that it is by now settled that matters relating to technical feasibility is within the exclusive domain of KSEB authorities, unless of course, such decision making process is shown to be mala fide or totally irrational, capricious, arbitrary and other grounds on which there can be a jurisdictional visitation of different jurisdiction. The courts are not at all equipped to decide about the viability and feasibility of a particular project and also the question as to whether the particular alignment would sub serve the larger public interest. Courts are to be conscious that scope of judicial review in such cases is very limited.
Courts are to bear in mind that detailed project reports and surveys are conducted by experts before arriving at the alignment. (see Union of India v. Kushala Shetty2 )
Court relying on the earlier Full Bench decision of this Court in Bharat 1[2017 (3) KLT 420]
2[2011 (12) SCC 69]
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Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board Trivandrum and Others4 , had occasion to detail the procedure to be followed by the District Magistrate who receives a reference under Section 16 of the Telegraph Act. It was held that the District Magistrate has to exercise his discretion judicially after hearing the parties and after taking such evidence as is required with regard to the objections raised. A speaking order should be passed which should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same. The order should also reflect the materials relied on by the District Magistrate for arriving at the conclusion. If the discretion is exercised by the District Magistrate as above, then unless it is shown that the findings are perverse or that the proceedings are vitiated by mala fides this Court will not be justified in interfering with such orders.
8. In Valsamma Thomas v. Additional District
Magistrate5 , a Division Bench of this Court after surveying the entire law on the point as well as the provisions in the statute, reiterated the scope of interference against an order passed by the District Magistrate
under Section 16(1) of the Telegraph Act. In paragraph Nos.11 and 12
5 [1997 (2) KLT 979]
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of the report it was observed thus:
“11. It is also clear from the authorities and judicial decisions that judicial review is directed not against the decision, but is confined to the examination of the decision making process. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made.
(1) The District Magistrate has to exercise his discretion judicially.
(2) He has to pass the order under S.16(1) of the Telegraph Act, after hearing the parties and after taking such evidence as is required with regard to the objections raised.
(3) The order passed by the Court should be a speaking order.
(4) The order should reflect the objections raised by the parties and reasons given by the Magistrate for accepting or rejecting the same.
If the discretion is exercised by the District Magistrate as above, then
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unless it is shown that the findings are perverse or that the proceedings are vitiated by malafides this Court will not be justified in interfering with such orders. This Court will not be justified in substituting its own opinion. It is also worth bearing in mind that this Court has not got technical expertise and will be slow to interfere with such matters.
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I find no reason to interfere with Ext.P5 order on any of the grounds raised by the petitioner. This Writ Petition will stand dismissed. There will be no order as to costs.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
NS
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APPENDIX
PETITIONER(S) EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE DISABILITY CERTIFICATE OF PETITIONER'S ELDER SON ISSUED BY THE STANDING DISABILITY ASSESSMENT BOARD OF GENERAL HOSPITAL, THIRUVANANTHAPURAM DATED 15.10.2010. EXHIBIT P2 TRUE PHOTOCOPY OF NOTICE NO.EB/BLPMVZM/353/TREES DATED 03.11.2015 SERVED ON THE PETITIONER ON 01.01.2016. EXHIBIT P3 TRUE PHOTOCOPY OF THE SITE PLAN PRODUCED BY THE 4TH RESPONDENT AS EXHIBIT R3(a) IN WPC NO.1226/2016. EXHIBIT P4 TRUE PHOTOCOPY OF JUDGMENT DATED 11.11.2019 OF THIS HONBOURABLE HIGH COURT OF KERALA IN W.P.(C)1226/2016.. EXHIBIT P5 TRUE PHOTOCOPY OF ORDER DATED 12.12.2019 ISSUED BY THE 2ND RESPONDENT AND SERVED TO THE PETITIONER BY POST ON 18.12.2019.
RESPONDENT(S) EXHIBITS:
EXHIBIT R3(a) TRUE COPY OF THE GAZETTE NOTIFICATION NO.PR1-269/WINDOW/1649(A)/09 DATED 22/12/2009. EXHIBIT R3(b) TRUE COPY OF THE SITE PLAN WITH MARKINGS OF THE EXISTING 66KV LINE AND 220KV LINE INCLUDING ITS RIGHT OF WAY. EXHIBIT R3(c) PHOTOGRAPH OF LOCATION NO.27. EXHIBIT R3(d) PHOTOGRAPH OF LOCATION NO.28. EXHIBIT R3(e) TRUE COPY OF THE REQUEST DATED 21/1/2020 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.
3 issues framed by the court
Whether the District Magistrate acted judicially in permitting the electric line alignment.
Whether the court is justified in interfering with the decision that the new alignment is technically infeasible.
Whether the proposed conductors passing over the petitioner's residence cause excessive damage requiring quashing.
Colour shows how this judgement treated each authority
Indu Chandran and Ors.Relied on¶5
Indu Chandran and Ors. v. KSEB, Tvm and Others
Union of IndiaReferred¶6
Union of India v. Kushala Shetty
Elizabeth GeorgeReferred¶7
Elizabeth George and Others v. Deputy Chief Engineer, KSEB, Kottayam and Ors
Bharat PlywoodExplained¶7
Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board Trivandrum and Others
Valsamma ThomasRelied on¶8
Valsamma Thomas v. Additional District Magistrate
3 provisions across 2 enactments
SAROJ.C.
THE DISTRICT COLLECTOR
THE ADDITIONAL DISTRICT MAGISTRATE
KERALA STATE ELECTRICITY BOARD LTD.
RAJA VIJAYARAGHAVAN V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
