Aleyamma v. Additional District Magistrate, Ernakulam
2020-02-25
RAJA VIJAYARAGHAVAN V.
body2020
DigiLaw.ai
JUDGMENT : 1. The above captioned Writ Petition is filed challenging Ext.P3 order passed by the 1st respondent in exercise of his powers under Section 16(1) of the Indian Telegraph Act, 1885 by which permission was accorded to the 2nd respondent to provide service connection to the residential home of the 3rd respondent by imposing certain conditions. 2. The facts of the case in its essence is that the 3rd respondent is the neighbour of the petitioner and she is residing on the eastern side of the property of the petitioner. Their properties are situated by a pathway lying in the North-South direction. On the northern side of the property of both the petitioner and the 3rd respondent is the Gandhipuram- Athani main road. The 3rd respondent applied for an electric connection to the building which was being newly constructed by her. The 2nd respondent decided to draw a line from a post situated on the northern side of the main road and through the pathway lying on the eastern side of the property of the petitioner. According to the petitioner, if the line is so drawn, it would cause danger to her property and several trees and plants would have to be cut and removed. According to the petitioner, if a new post is installed towards the eastern side from the post from which line is being drawn, supply can be provided without any inconvenience. When objection was raised by the petitioner, the matter was referred to the 1st respondent. The 1st respondent issued summons to the parties and considered the objections of both sides. He took note of the fact that the line was being drawn through the pathway, which is meant for accessing the property of the 3rd respondent and no serious inconvenience is likely to be caused to the petitioner. He also took note of the fact that the access of the petitioner to the main road was through the northern side of her property. The 2nd respondent on the other hand contended that the line was drawn after providing adequate clearance and to alleviate any inconvenience, a side arm can be placed so that some distance can be maintained from the eastern boundary of the property of the petitioner. After considering all facts, the proposal made by the 2nd respondent was accepted and sanction was accorded. 3.
After considering all facts, the proposal made by the 2nd respondent was accepted and sanction was accorded. 3. Smt. S. Sikky, the learned counsel appearing for the petitioner, submitted that the relationship between the parties are quite strained and the only intention of the 3rd respondent is to cause inconvenience to the petitioner. She contended that the line is being drawn very close to the eastern boundary of the property of the petitioner and referring to the photographs produced by her as Ext.P2, it is urged that her property is thickly planted with trees. It is further contended that though a temporary line was drawn by using a side arm adequate distance is not maintained. 4. Sri. Sudheer Ganeshkumar, the learned standing counsel appearing for the 2nd respondent submitted that the objection raised by the petitioner is unsustainable. I have also heard Sri. Dinesh R. Shenoy, the learned counsel appearing for the 3rd respondent. The standing counsel appearing for the 2nd respondent has produced the sketch relied on by the 2nd respondent and have also made available the file. 5. I find from the records that the line has been drawn through the pathway situated on the eastern side of the property of the petitioner. The District Magistrate took note of the fact that the KSEB had already drawn 35 metres of overhead line and 28 metres of weather proof line through the pathway and it was then that objection was raised. The inconvenience projected by the petitioner herein is that certain branches and leaves of certain trees would have to be trimmed if the line is being drawn as proposed. The proposal of the petitioner that the line should be drawn from a point towards the eastern side was found not technically or financially plausible. In order to safeguard the interest of the petitioner, necessary directions have been issued by the 1st respondent. 6. In Valsamma Thomas vs. Additional District Magistrate, 1997 (2) KLT 979 , 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 of the report it was observed thus: “11.
In paragraph Nos. 11 and 12 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. 12. Thus, on a review of the authorities of this question, we come to the following conclusions: (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. (5) 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. 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.” 7. As held by this Court in Indu Chandran and Others vs. KSEB, Thiruvananthapuram, 2017 (3) KLT 420 , this Court will be justified in interfering with the discretion exercised by the District Magistrate only in cases of established illegality, irrationality, procedural impropriety or where the decision is found to be unreasonable in the wednesbury sense or vitiated by mala-fides, either factual or legal. In the instant case, I am unable to find any infirmities in the order which is a considered one passed after hearing all sides.
In the instant case, I am unable to find any infirmities in the order which is a considered one passed after hearing all sides. There is no allegation of mala-fides nor can it be said that the order is perverse. The decision of the District Magistrate is clearly based on the opinion as regards feasibility given by the 2nd respondent. 8. In that view of the matter, no interference is warranted. This Writ Petition will stand dismissed. There will be no order as to costs.