IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 W.A.No.1805 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.13783/2008, DATED 30/07/2008 .................... APPELLANT/PETITIONER:- ------------------------------------- MAR THOMA CHERIA PALLY, KOTHAMANGALAM, REPRESENTED BY ITS VICAR REV. FR.JOSE JOHN, AGED 43, S/O.YOHANNAN, PARANAYIL HOUSE KOTHAMANGALAM. BY ADV. SRI.K.RAMAKUMAR (SR.), SRI.SHAJI P.CHALY RESPONDENTS/RESPONDENTS:- ------------------------------------------------ 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. ADDL.DISTRICT MAGISTRATE, COLLECTORATE, ERNAKULAM. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KOTHAMANGALAM. 4. ELDO P.JOHN, S/O.P.M.JOHNY PALAKKADAN HOUSE, THANKALAM, KOTHAMANGALAM. 5. MARTHA MARIYAM CATHEDRAL VALIYAPALLY, KOTHAMANGALAM.. W.A.NO.1805 OF 2008 - 2 - 6. KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM, REPRESENTED BY ITS SECRETARY. (IMPLEADED IN THE WRIT PETITION AS ADDL.6TH RESPONDENT.) R1 & R3 BY STANDING COUNSEL SRI.C.K.KARUNAKARAN. R2 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. R4 BY ADV.SRI.C.T.JOSEPH, SRI.ROSHIN IPE JOSEPH, SRI.JOE POLLAYIL. R5 BY ADV.SRI.GEORGE POONTHOTTAM. R6 BY ADV. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.No. 1805 of 2008 ------------------------------------------ Dated, this the 13th day of October, 2008 JUDGMENT H.L.Dattu, C.J. This writ appeal is directed against the orders passed by the learned Single Judge in W.P.(C) No.13783 of 2008 dated 30th July, 2008. By the impugned order, the learned Single Judge has rejected the writ petition. (2) Petitioner in the writ petition filed before this Court, had called in question the orders passed by the second respondent Additional District Magistrate (Ext.P1 order) directing shifting of the transformer placed in front of the building of the 4th respondent to the northern corner of the compound wall of the cemetery belonging to the petitioner church. (3) According to the petitioner, Ext.P1 is vitiated for the reason that the Additional District Magistrate while passing the impugned order had not afforded an opportunity of hearing to all the parties including the petitioner. (4) This assertion of the petitioner is not seriously disputed by Smt.K.Meera, learned Government Advocate, and also Sri.C.K.Karunakaran, learned Standing Counsel appearing for the Kerala State Electricity Board. (5) This Court while disposing of Writ Petition No.7726 of 2007 had directed the Additional District Magistrate to pass appropriate orders on the representation filed by the petitioner therein after affording an W.A.No.1805 of 2008 2 opportunity of hearing to all the parties. (6) Ext.P1 order is passed by the second respondent in exercise of his powers under Section 16 of the Indian Telegraph Act, pursuant to the direction issued by this Court. In our view, while passing the aforesaid order, the District Magistrate will be discharging the administrative function. While exercising this power, he is expected to afford an opportunity of hearing to all the parties who would be affected by his order. If this minimal requirement is not complied, the order passed would be in violation of principles of natural justice and the same cannot be sustained. The case of the petitioner is that the impugned order is passed without affording an opportunity of hearing to the petitioner. This assertion is not disputed by the contesting respondents. Therefore, the inevitable conclusion is that the impugned order is arbitrary and in violation of Article 14 of the Constitution and therefore, the same requires to be set aside and matter requires to be remanded to the authority who has passed the impugned order with a direction to pass a fresh order in accordance with law. (7) In view of the above, the following: ORDER i) Writ appeal is disposed of. ii) Ext.P1 order passed by the Second respondent Additional W.A.No.1805 of 2008 3 District Magistrate is set aside. iii) The matter is remanded back to the Additional District Magistrate to pass fresh orders in accordance with law after affording an opportunity of hearing to all the parties concerned, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this Court's order. (iv) The parties are at liberty to project their case and their claim before the second respondent Additional District Magistrate. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk