Adv.Stanley Sebastian K vs The Additional District ...
2021 Latest Caselaw 19752 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
 THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                   WP(C) NO. 18954 OF 2021


PETITIONERS:

    1     ADV.STANLEY SEBASTIAN K.
          AGED 55 YEARS
          S/O.K.A.SEBASTIAN, KOLANCHERY HOUSE,
          MANICKAMANGALAM P.O., PIN - 683 574, KALADY.
    2     SHERLY DAVID
          AGED 57 YEARS
          W/O.DAVID AND D/O.K.A.SEBASTIAN, PALATHINKAL
          HOUSE, KATTOOR P.O., NEAR RC CHURCH,
          IRINGALAKKUDA, PIN - 680 702.
    3     DR.JOJO SEBASTIAN K.
          AGED 71 YEARS
          D/O.K.A.SEBASTIAN, HOUSE NO.X/125, TIPPU
          SULTHAN ROAD, THRUPPAYAR, VALAPPADU P.O.,
          THRISSUR - 680 567.
    4     NEYA JOY
          AGED 24 YEARS
          D/O.JOY SEBASTIAN, C/O.STANELY SEBASTIAN K.,
          KOLANCHERY HOUSE, MANICKAMANGALAM P.O., PIN -
          683 574, KALADY.
    5     SHAJI SEBASTIAN K.
          AGED 60 YEARS
          S/O.K.A.SEBASTIAN, HOUSE NO.52/851-A,
          KOLANCHERY HOUSE, THOTTATHIL BUILDING, JANATHA
          ROAD, VYTTILA P.O., PIN - 682 019.
 W.P.(C) No.18954 of 2021
                             -:2:-

     6     ANTONY PANIKULAM
           AGED 71 YEARS
           PANIKULAM HOUSE, PUTHENCHIRA EAST, PUTHENCHIRA
           P.O., THRISSUR - 680 682.
     7     JOLY SEBASTIAN
           AGED 53 YEARS
           S/O.K.A.SEBASTIAN, KOLANCHERY HOUSE, 26/2760J,
           ABOVE KSFE, PANDIT KURUPPAN ROAD, THEVARA, KOCHI
           - 682 013.
     8     SHEEBA JOSEPH
           AGED 59 YEARS
           W/O.JOSEPH VARKEY AND D/O.K.A.SEBASTIAN, POONOLIL
           HOUSE, PULLUVAZHY P.O., PERUMBAVOOR - 683 541.
           BY ADV K.SUNILKUMAR


RESPONDENTS:

     1     THE ADDITIONAL DISTRICT MAGISTRATE
           OFFICE OF THE ADDITIONAL DISTRICT MAGISTRATE,
           CIVIL STATION, KAKKANAD P.O., ERNAKULAM, PIN -
           682 030.
     2     THE ASSISTANT EXECUTIVE ENGINEER
           KSEB ELECTRICAL SUB SECTION, KALADY P.O., PIN -
           683 574.
     3     JOLLY K.S.
           S/O.ESTHAPPANOSE, KOLANCHERY HOUSE,
           NETTINAMPILLI, MANICKAMANGALAM P.O., PIN - 683
           574, KALADY.
           BY ADV DINESH MATHEW J.MURICKEN
           ADV SUDHEER GANESH KUMAR, SC
 W.P.(C) No.18954 of 2021
                             -:3:-




           BY SENIOR GOVERNMENT PLEADER ADV. JUSTIN JACOB



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.18954 of 2021
                                    -:4:-

                     BECHU KURIAN THOMAS, J.
                        ------------------------------------
                        W.P.(C) No.18954 of 2021
                       --------------------------------------
                Dated this the 23rd day of September, 2021

                                JUDGMENT

Petitioners are challenging Ext.P3 order granting permission to shift

an electric line drawn for the benefit of petitioners but through the property

of the third respondent. The impugned order came to be issued pursuant to

an application for shifting of electric line submitted by the third respondent

which was objected to by the petitioners.

2. Petitioners are co-owners of 1.42 acres of property. They enjoy a

three-phase low tension overhead electric line for agricultural purposes

connected to their property. Since the overhead line is drawn through the

property of the third respondent, he sought to shift the electric line. When

the second respondent proposed to shift the electric line through the

property of petitioners themselves, they objected and refused to give

consent. Hence the second respondent approached the first respondent

under section 16(1) of the Indian Telegraph Act, 1885.

3. After hearing the petitioners and the third respondent as well as W.P.(C) No.18954 of 2021

the KSEB, the Additional District Magistrate came to the conclusion that

permission can be granted to the KSEB to draw the overhead line as per

the route P-Q-R-S-T shown in the sketch attached to Ext.P3. Petitioners

for whose benefit the electric line is drawn, are challenging Ext.P3

contending that all the co-owners of the property have not been heard and

that consent for drawing the line through the property of the third

respondent was obtained from the third respondent's father in the year

1977. It was also stated that instead of overhead line, if underground cable

is laid, petitioners are even ready to bear 50% of the cost and that since

third respondent has already deposited Rs.61,247/- for shifting the electric

line, petitioners are ready to pay the balance of the cost, if underground

cables are laid.

4. I have heard the learned counsel Adv.K.Sunilkumar on behalf of

the petitioners, the learned Senior Government Pleader Sri.Justin Jacob

for the first respondent, the learned Standing Counsel Adv.Anoop Kumar

for the second respondent and Adv. Dinesh Mathew J. Murickan for the

third respondent.

5. When this matter came up for consideration on 15-09-2021, this W.P.(C) No.18954 of 2021

Court had directed the standing counsel for the second respondent to

obtain instructions as to whether it was feasible to draw underground

cables as agreed to by the petitioners, instead of the overhead line as

directed in Ext.P3. The learned counsel for the petitioners was also

directed to obtain instructions on the willingness of the petitioners to bear

the cost of drawing the underground cables.

6. Pursuant to the said direction, the second respondent has informed

that the total cost as per the estimate taken by the second respondent

comes to Rs.1,36,897/- for drawing the underground cable. However,

learned counsel for petitioners submitted that Ext.P3 has been passed

without notice to all the co-owners of the property.

7. Supplementing the objection of the petitioners regarding non-

impleadment of all the co-owners, it is stated that there are four legal heirs

who were not been arrayed as parties when Ext.P3 order was issued and

hence Ext.P3 is bad in law.

8. A perusal of Ext.P3 order shows that out of 12 co-owners of the

property, due to the death of one of the co-owners, four of the legal heirs

are not arrayed as parties. The absence of arraying some of the legal heirs W.P.(C) No.18954 of 2021

of one of the co-owners is not a material illegality in Ext.P3 since there is

substantial representation in as much as out of twelve co-owners eight of

them are already arrayed as parties in the impugned order. Further, all

these co-owners trace their lineage to the same person. In such

circumstances, I am of the view that the contention raised by the petitioners

regarding the absence of all the co-owners in the impugned order is not of

any significance.

9. On noticing the disinclination of this Court to agree to the legal

objection raised as above, the learned counsel for the petitioners, relying

upon the admission made in ground H of the memorandum of writ petition,

submitted that, since the second respondent has informed this court that

drawal of underground cables is also feasible through the same route as

proposed in Ext.P3, petitioners are ready to bear the balance cost of laying

the underground cables apart from the amount already deposited by the

third respondent.

10. The learned counsel for the third respondent accepts the proposal

mooted by the learned counsel for the petitioner to utilise the amount

already deposited by the third respondent for shifting the electric line. W.P.(C) No.18954 of 2021

11. In view of the above submissions of the learned counsel for the

petitioners as well as that of the third respondent and the consent noted

between the petitioners and respondents two and three in drawing the

underground cables through the route proposed in Ext.P3, this writ

petition itself can be disposed of with suitable directions.

12. Accordingly, there will be a direction to the petitioners to deposit

the balance of the estimate amount mentioned in this judgment, over and

above Rs.61,247/- already deposited by the third respondent, for drawing

an underground electric line through the route PGRST mentioned in Ext.

P3. The petitioners shall deposit the aforesaid amount with the second

respondent within 15 days from today and on such deposit, the second

respondent shall carry out shifting of the electric line, as ordered in Ext.P3,

but by underground cables within two weeks thereafter. Ext.P3 shall stand

modified to the above extent of drawing the electric line through

underground cables.

The writ petition is disposed of as above.

Sd/-

BECHU KURIAN THOMAS JUDGE AJ/23.09.2021 W.P.(C) No.18954 of 2021

APPENDIX OF WP(C) 18954/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION DATED 24/04/2021 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT.

Exhibit P2 TRUE COPY OF THE OBJECTION DATED 23/07/2021 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.

Exhibit P3 TRUE COPY OF THE ORDER NO.DCEKM-4518/2021-

M5 DATED 26/08/2021 PASSED BY THE 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF THE NOTICE DATED 10/09/2021 ISSUED BY THE ASSISTANT ENGINEER OF K.S.E.B.ELECTRICAL SECTION, KALADY.

Exhibit P5 TRUE COPY OF REPLY DATED 10/09/2021 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.