Kerala High Court
Jyothi R.Nair vs The Secretary on 11 September, 2024
OP(C) No.2038/2024 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Wednesday, the 11th day of September 2024 / 20th Bhadra, 1946
OP(C) NO. 2038 OF 2024
CMA 26/2024 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA, ALAPPUZHA
PETITIONER(S)/RESPONDENT/PLAINTIFF:
JYOTHI R.NAIR, AGED 48 YEARS, D/O.RADHAMANIYAMMA, ROHITH BHAVAN,
PAZHANJIYOORKONAM,PATTOOR-P.O., NOORANAD, ALAPPUZHA DISTRICT, PIN -
690 504
RESPONDENT(S)/APPELLANTS/DEFENDANTS:
1. THE SECRETARY KERALA STATE ELECTRICITY BOARD LTD., VYDUTHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM , PIN - 695 004
2. THE EXECUTIVE ENGINEER TRANS GRID TC DIVISION, KERALA STATE
ELECTRICITY BOARD LTD., KOTTARAKKARA, KOLLAM , PIN - 691 532
3. THE ASSISTANT EXECUTIVE ENGINEER TRANS GRID TC SUB DIVISION,
PATHANAMTHITTA , PIN - 689 645
Op (civil) praying inter alia that in the circumstances stated in
the affidavit filed along with the OP(C) the High Court be pleased to pass
an order staying all further proceedings pursuant to Exhibit P7 Judgment
in CMA.No.26/2024 of the Additional District Court-I, Mavalikkara, during
the pendency of the Original Petition, in the interest of justice.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of OP(C) and upon hearing the arguments of
M/S.R.REJI, M.V.THAMBAN, THARA THAMBAN, B.BIPIN, ARUN BOSE, JEENA A.V. &
THOMAS THOMAS, Advocates for the petitioners, STANDING COUNSEL for
respondents, the court passed the following:
OP(C) No.2038/2024 2/5
VIJU ABRAHAM , J.
===========================
OP(C) No. 2038 of 2024
============================
Dated this the 11th day of September, 2024
ORDER
Admit.
2. The learned Standing Counsel takes notice for all the
respondents.
3. Petitioner has approached this Court challenging Ext.P7
judgment in CMA No.26/2024, wherein the interim injunction
granted as per Ext.P5 was vacated. The specific case of the
petitioner is that the suit has been filed seeking injunction
restraining the defendants KSEB from trespassing into the plaint
schedule property other than the area that defendant had acquired
for erecting a tower and from committing any sort of waste therein.
The contention of the petitioner is that the respondents are
excavating earth in such a manner so as to cause damage to the
property, building and entrance of the house. The excavation was
such that there is every chance for the house to collapse. It is also
contended that the private way has also been encroached by the
respondents.
4. A commission was taken out and Ext.P4 commission
report was filed, wherein it is specifically found that the present
excavation will result in causing loss of lateral support of the
building and the way leading to the building belonging to the
petitioner. After hearing the parties and after considering the
commission report, Ext.P5 temporary injunction was granted. A
perusal of Ext.P5 interim injunction would reveal that the
respondents herein are restrained only from committing any sort
of waste in the area other than the area acquired by the KSEB. So
the work undertaken by the Electricity Board has not been
injuncted, but the injunction is only to confine their activities to
the area acquired by KSEB. An appeal was preferred and the
appellate Court by Ext.P7 order vacated the interim injunction
stating that the balance of convenience cannot be found in favour
of the petitioner, and if there is any further damage to the
property or building of the petitioner she can very well approach
the District Court by filing OP (Electricity). Petitioner has also
produced Ext.P8 series of photographs to show the exact factual
situation.
5. Taking into consideration the above facts and
circumstances, and after hearing the learned Counsel for the
petitioner and the learned Standing Counsel for the Electricity
Board, I am of the view that the matter requires detailed
consideration, and the petitioner has made out a case for grant of
an interim order. Accordingly there will be an interim order as
prayed for, till the next posting date.
Post on 24.09.2024.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
11-09-2024 /True Copy/ Assistant Registrar
APPENDIX OF OP(C) 2038/2024
Exhibit P4 TRUE COPY OF THE COMMISSION REPORT IN I.A.NO. 2/2024 IN
O.S.NO.228/2024 ON THE FILE OF MUNSIFF'S COURT,
MAVELIKKARA
Exhibit P5 TRUE COPY OF THE ORDER DATED 24.07.2024 IN
I.A.NO.1/2024 IN O.S.NO.228/2024 ON THE FILE OF
MUNSIFF'S COURT, MAVELIKKARA
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 4.09.2024 IN
C.M.A.NO.26/2024 ON THE FILES OF THE ADDL.DISTRICT
COURT-1, MAVELIKKARA
Exhibit P8 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENT LIE
AND NATURE OF THE SCHEDULE BUILDING
11-09-2024 /True Copy/ Assistant Registrar
