High Court Kerala High Court

Mary Daisy Antony vs Kerala State Electricity Board on 20 August, 2008

Kerala High Court
Mary Daisy Antony vs Kerala State Electricity Board on 20 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CMA.No. 40 of 2003()


1. MARY DAISY ANTONY, W/O.ANTONY, AGED
                      ...  Petitioner
2. ANTONY, S/O.CHEEKU, AGED 53 YEARS,

                        Vs



1. KERALA STATE ELECTRICITY BOARD,
                       ...       Respondent

2. CHIEF ENGINEER, KERALA STATE

3. ASSISTANT EXECUTIVE ENGINEER,

4. ASSISTANT ENGINEER, KERALA STATE

5. NE VILLE D'COTHE, AGED 63 YEARS,

                For Petitioner  :SRI.P.F.THOMAS (SR.)

                For Respondent  :SRI. ASOK M.CHERIYAN, SC, KSEB

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :20/08/2008

 O R D E R
                       M.N. KRISHNAN, J.
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                     C.M.A.NO. 40 OF 2003
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            Dated this the 20th day of August, 2008.

                          J U D G M E N T

This appeal is preferred against the judgment of the

Subordinate Judge, Kochi in A.S.125/01. The suit is for a

permanent prohibitory and mandatory injunction. The Court

on consideration of the entire materials decreed the suit

granting a permanent prohibitory injunction restraining the

defendants and their subordinates from drawing electric line

above the plaint schedule building and charging the lines with

electric energy. There was a direction to dismantle the electric

lines also. Against that decision the K.S.E.B. preferred the

appeal before the Subordinate Judge’s Court. At the time of

hearing the appeal the K.S.E.B. produced three documents

and an affidavit with a request to consider the same in the

appeal. In paragraph 7 of the judgment the appellate court

held that the three documents are relevant for the case. In the

affidavit filed by the 3rd appellant before that Court it is stated

CMA 40 of 2003
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that as per Rule 83(1)(b) of the Indian Electricity Rules 1956 a

vertical clearance of 4.60 meters has to be maintained from

the top of the building to the electric lines. But at that time

the height was only 3.38 meters. An affidavit is filed to the

effect that the Board has increased the height of the tower and

had provided a vertical clearance of 7.2 meters from the

building of the respondents. But the correctness of the same

was not admitted by the plaintiff in the case. So, in order to

enable the Board to prove those three documents and also the

factum of raising the height of the electric line, the appellate

Court found that the matter requires reconsideration and

therefore set aside the judgment and decree of the trial court

and remanded the matter for fresh disposal. I feel, on account

of the subsequent developments it had gone to the root of the

matter and the matter really requires reconsideration by the

trial Court. It was under those circumstances the appellate

court felt that the matter has to be further probed into by the

CMA 40 of 2003
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trial court. Therefore I do not find any mistake in the order of

remand and therefore the appeal lacks merit and it is

dismissed.

I direct all the parties to appear before the Court below

on 6.10.08.

M.N. KRISHNAN, JUDGE.

ul/-

CMA 40 of 2003
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M.N. KRISHNAN, J.

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C.M.A. No. 40 OF 2003
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J U D G M E N T

20th August, 2008.