IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 13783 of 2008(N) --------------------------------------------- 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.SHAJI P.CHALY RESPONDENTS: ----------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. ADDITIONAL 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. ADDL.R6 KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM, REPRESENTED BY ITS SECRETARY. (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 30.6.2008 IN I.A.NO.8149/08). R1 & R3 BY SHRI P.P. THAJUDEEN, SC, KSEB. R2 BY GOVERNMENT PLEADER SHRI BEJOY CHANDRAN. R4 BY ADV. SHRI C.T. JOSEPH. ADDL.R6 BY ADV. SHRI V.M. KURIAN. W.P.(C). NO.13783/08 N THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 13783 OF 2008 N -------------------------------------- Dated this the 30th July, 2008 JUDGMENT Petitioner challenges Ext.P1. Ext.P1 is an order passed by the second respondent, Additional District Magistrate purporting to exercise his powers under Section 16 of the Indian Telegraph Act. By the same, the transformer which currently is placed in front of the building of the fourth respondent, is permitted to be placed near the cemetery belonging to the petitioner Church. 2. I heard the learned counsel appearing for the parties. Learned counsel for the petitioner would contend that Ext.P1 is vitiated. According to him, there was an earlier decision taken by the Consumer Grievance Redressal Forum which is a statutory body of the Electricity Board. By the same, it was found that the transformer could not be shifted on the northern side of the cemetery of the petitioner Church as there is no sufficient statutory clearance of electric lines. It is despite this, it is contended, that the second respondent has proceeded to WPC.13783/08 N 2 grant permission. It is pointed out that the second respondent has got over the contention by observing that since the compound wall is around a cemetery, there is no need to keep the distance from the compound wall for statutory clearance. It is further contended that against the decision of the Consumer Grievance Redressal Forum, law provides for remedy by way of a representation to the Ombudsman and, therefore, the decision taken by the second respondent is without jurisdiction. 3. Per contra, learned counsel appearing on behalf of the fourth respondent would point out that the petitioner has no legal right. No injury is caused to his legal rights, he contends. He would further contend that it is to be noticed that Ext.P1 order came to be passed pursuant to Ext.R4(b) Judgment of this Court. He would further point out that by Ext.R4(d), this Court had taken note of the stand of the standing counsel for the Board that action has been taken on the basis of Ext.P1 and estimate had been drawn up and the work could be completed without delay. Recording this, it was directed that the transformer WPC.13783/08 N 3 should be shifted within three months. It is stated that there is an existing transformer by the side of the compound wall around the cemetery. It is also contended that actually there is nothing brought out on record to show that statutory clearance is required. 4. Learned counsel appearing on behalf of the Board would point out that under the Indian Electricity Rules, statutory clearance of 2.65 metres is to be kept from live conductors. It is his contention that the installation of the transformer as proposed in Ext.P1 will offend the safety requirement. In the course of the argument, counsel for petitioner suggested that the transformer can be located at another place in Kothamangalam Municipality, namely in front of the Municipal Shopping Complex. The Municipality came to be impleaded. A Statement is filed by the Municipality stating that such a proposal would not be feasible. Learned standing counsel for the Board would submit that it may not be feasible to have the transformer in front of the Municipal building. WPC.13783/08 N 4 5. This is a case where I cannot overlook the fact that Ext.P1 order came to be passed pursuant to Ext.R4(b) Judgment of this Court. Ext.R4(b) Judgment came to be passed taking note of the complaint raised based on right to ownership over a piece of land. It is true that there is a concern raised about the safety for the reason that the statutory clearance cannot be kept. But, I find that as noted by the second respondent Magistrate, in the facts of this case this case, the transformer is to be set up around a cemetery. Clearance between the wall of the cemetery and the proposed transformer would be 1.8 metres from the compound wall. Counsel for the fourth respondent, in this connection, points out that the distance between the compound wall and the existing transformer is 2.5 metres which is also less than 2.65 metres. No doubt, counsel for petitioner immediately joins issue and points out that, that was under the earlier Rules. Petitioner has not sought any remedy against Ext.R4(b) and the Authority proceeded to pass the order pursuant to Ext.R4(b). In such circumstances, it may not be appropriate to entertain the WPC.13783/08 N 5 complaint about the second respondent not possessing jurisdiction as such in the matter, in the teeth of the order passed by the Consumer Grievance Redressal Forum. That apart, it is settled law that Article 226 provides for an extraordinary, but discretionary jurisdiction. Even if the petitioner makes out a case, it is not inexorable that the Court should intervene. There is considerable free play in the joints for the Court under Article 226 of the Constitution. The chief consideration should ultimately be whether, but for interference, there will be miscarriage of justice. In the facts of this case, as already noticed, the transformer is proposed to be installed on a public road outside the compound wall of the cemetery belonging to the petitioner. My be, it would have been a different question to be answered if people were actually residing in that area. No doubt, counsel for petitioner also submitted that the existence of the transformer can lead to problems when processions pass-by. I would think that in the totality of the facts, the case of the petitioner is not the one which deserves to be countenanced WPC.13783/08 N 6 under Article 226 of the Constitution of India. Accordingly, the Writ Petition fails and it is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge