Sathyabhama C.K vs The District Collector
2023 Latest Caselaw 10526 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR. JUSTICE T.R.RAVI
         MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                         WP(C) NO. 27266 OF 2023
PETITIONER:

              SATHYABHAMA C.K.,
              AGED 87 YEARS
              KRISHNAVILASAM HOUSE, CHOORAKODE, PATTIMATTOM P.O.,
              PATTIMATTAM, ERNAKULAM, PIN - 683562.

              BY ADVS.
              STEPHY K REGI
              JAIN VARGHESE
              ANJANA P.
              JEO GEORGE
              NIDHIN REJI KURIAKOSE


RESPONDENTS:

     1        THE DISTRICT COLLECTOR,
              CIVIL STATION, ECHAMUKU, KUNNUMPURAM, KAKKANAD,
              ERNAKULAM, PIN - 682030.
     2        THE ASSISTANT EXECUTIVE ENGINEER,
              ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD,
              KIZHAKAMBALAM, ERNAKULAM, PIN - 683562.
     3        ELDHO MATHEW,
              AGE NOT KNOWN TO THE PETITIONER, PUTHENPURACKAL HOUSE,
              KAITHAKADU, PATTIMATTOM P.O., PATTIMATTAM , ERNAKULAM,
              PIN - 683562.
     4        THE ASSISTANT EXECUTIVE ENGINEER,
              ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD,
              PATTIMATTOM, ERNAKULAM, PIN - 683562.
 *ADDL.R5     ADDITIONAL DISTRICT MAGISTRATE,
              CIVIL STATION, ECHAMUKU, KUNNUMPURAM, KAKKANAD,
              ERNAKULAM- 682030.

              *(IS IMPLEADED AS ADDL.R5 AS PER ORDER DATED 16.10.2023
              IN I.A.NO.1 OF 2023).

              BY ADVS.
              NIRMAL S
              TITTO THOMAS
 WP(C) NO. 27266 OF 2023

                                 2

            BASIL KURIAKOSE
            R.REVIKUMAR
            NAVEEN THOMAS
            SRI. MATHEW JOHN

            SRI.B.PREMOD, SC
            SMT. K. G. SAROJINI. GP.


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27266 OF 2023

                                         3

                                T.R. RAVI, J.
                       --------------------------------------
                      W.P.(C) No.27266 of 2023
                    ----------------------------------------------------
                 Dated this the 16th day of October, 2023

                                JUDGMENT

The writ petition has been filed challenging the order

passed by the 1st respondent in the matter of drawing an

underground electric line to the property of the 3 rd respondent

through a common pathway. The properties originally belonged

to the husband of the petitioner. After the death of the husband,

the properties devolved on the petitioner and her children. The

legal heirs entered into a partition whereby different plots were

identified and allotted to the sharers. A way was drawn through

the property for the purpose of reaching the properties allotted

to each of the sharers. The petitioner was allotted schedule No.A

in the partition deed. The 3rd respondent is a transferee of the

sharer, who was allotted schedule No.E in the partition deed.

The 3rd respondent intended to start an industrial unit and for

that purpose, he wanted to draw an electric line. The line was WP(C) NO. 27266 OF 2023

decided to be drawn by underground cabling through the

pathway that had been set apart for the use of all the sharers.

The petitioner objected to the drawing of the line. The counsel

for the petitioner and the 3rd respondent were heard by the

additional 5th respondent and Ext.R3(f) order was issued. The

said order has been challenged in this writ petition. The primary

contention raised is that the pathway belongs exclusively to the

petitioner and the other sharers had only a user right over the

pathway. It is hence submitted that without her permission a

line cannot be drawn by underground cabling through the said

pathway. Another contention taken is that she was never

informed of the order that was passed and came to know about

it only after the work started.

2. A reading of Ext.R3(f) shows that the contention that

the pathway belongs to the petitioner was addressed before the

additional 5th respondent and the additional 5th respondent has

found that the way belongs to all the sharers. Even otherwise

such a contention cannot be countenanced at the instance of one WP(C) NO. 27266 OF 2023

of the sharers to whom a share in the property devolved on the

death of the original owner. Once the death takes place all the

legal representatives become sharers in the property and unless

in the partition it is specifically stated that the ownership of the

pathway has been set apart to the share of a single sharer no

such right can be claimed by any of the sharers. The petitioner

has only an equal right along with the other sharers for use of

the way. Another contention that was taken before the additional

5th respondent was that if an underground cable is drawn the

pathway will be considerably destroyed. The impugned order

has recorded the undertaking of the 3 rd respondent that the way

will be put back to its original state after the drawing of the

cable. As such that objection also stands answered. The writ

petition does not raise any allegation of malafides against the

additional 5th respondent.

3. The counsel for the 3rd respondent points out that it is

settled law that an order which has been issued under Section

16 of the Telegraph Act, 1885 can be successfully challenged WP(C) NO. 27266 OF 2023

only if there are allegations of malafides and this Court will not

interfere unless there are such grounds available. Reference is

made to the decisions of this Court in Indu Chandran v. Kerala

State Electricity Board Ltd. [2017 (3) KLT 420], Aleyamma v.

Additional District Magistrate, Ernakulam [2020 KHC 3922]

and a Division Bench judgment in Valsamma Thomas v.

Additional District Magistrate [1997 KHC 489]. I do not find

any reason to take a different view. The objections which were

raised before the additional 5th respondent have been answered.

So long as there are no allegations of malafides the order cannot

be successfully challenged before this Court.

No grounds are made out. The writ petition fails and is

dismissed. The dismissal of the writ petition is without prejudice

to any other remedy that the petitioner may have under any

other law in force.

Sd/-

T.R.RAVI JUDGE mpm WP(C) NO. 27266 OF 2023

APPENDIX OF WP(C) 27266/2023

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY COMPLAINT DTD 26.07.2023 SUBMITTED BEFORE THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 06.07.2023.

EXHIBIT P3 TRUE COPY OF ORDER PASSED 1ST RESPONDENT DATED 10.08.2023.

EXHIBIT P4 TRUE COPY TAX RECEIPT DTD 14.07.2023 IS ISSUED BY THE VILLAGE OFFICER PATTIMATTOM.

EXHIBIT P5                TRUE COPY OF POSTAL COVER.
EXHIBIT P6                TRUE COPY OF LOCATION CERTIFICATE NO.

564/2023 DTD 07.09.2023 IS ISSUED BY THE VILLAGE OFFICER PATTIMATTOM.

EXHIBIT P7 TRUE COPY OF SKETCH OF SCHEDULED PROPERTY.

RESPONDENTS' EXHIBITS

EXHIBIT- R3(A) TRUE COPY OF PARTITION DEED NUMBERED 5816/1999 OF SRO PUTHECRUISE DATED 30/12/1999.

EXHIBIT- R3(B) THE TRUE COPY OF THE PERMIT FROM THE POLLUTION CONTROL BOARD DATED 06.11.2022. EXHIBIT- R3(C) THE TRUE COPY OF THE ACKNOWLEDGMENT CERTIFICATE DATED 26.06.2023 TO 25.06.2026. EXHIBIT- R3(D) THE TRUE COPY OF THE COMPLAINT DATED 30.06.2023, BEFORE THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM.

EXHIBIT- R3(E) THE TRUE COPY OF THE OBJECTION DATED 26.07.2023 BEFORE THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM.

EXHIBIT- R3(F) THE TRUE COPY OF THE PROCEEDINGS AND ORDER OF THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM DATED 10.08.2023.

EXHIBIT- R3(G) THE TRUE COPY OF THE ORIGINAL SUIT NO.

224/2023 BEFORE THE HONOURABLE MUNSIFF COURT, PERUMBAVOOR DATED 21/7/2023.

WP(C) NO. 27266 OF 2023

EXHIBIT R3 (H) TRUE COPY OF SALE DEED NUMBERED 4873/2022 OF SRO PUTHECRUISE DATED 8/8/2022.

EXHIBIT R3 (I) TRUE COPY OF SALE DEED NO.3581/2020 OF SRO PUTHECRUISE DATED 8/10/2020.

EXHIBIT R3 (J) THE TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE PATTIMATTOM VILLAGE OFFICE DATED 11.09.2023.

EXHIBIT R3(K) TRUE COPY OF THE LOCATION SKETCH FROM THE VILLAGE OFFICE DATED 11.09.2023.