Bar Association, Thiruvalla v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938** **WP(C).No. 28575 of 2016 (V)** **-------------------------------------------** **PETITIONER(S) :** **-------------------------** **BAR ASSOCIATION, THIRUVALLA, REPRESENTED BY ITS SECRETARY, THIRUVALLA, PATHANAMTHITTA DISTRICT.** **BY SRI.R.D.SHENOY (SENIOR ADVOCATE) ADVS. SRI.VARGHESE P.THOMAS** **SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.R.SANTHOSH BABU SRI.T.P.PRADEEP SRI.R.GIREESH VARMA SRI.K.N.RADHAKRISHNAN(THIRUVALLA) SRI.ABRAHAM SAMSON SMT.DIVYA K.NAIR SRI.MVS.NAMBOOTHIRY** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HOUSING, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN:695 001.** **2. KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, THIRUVALLA, PIN:689 101.** **3. EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, THIRUVALLA, PIN:689 101.** **4. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM- 695 001.** **5. ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, THIRUVALLA, PIN:689 101.** - **R1 BY SR. GOVERNMENT PLEADER SRI.C.P.PRADEEP R2 & R3 BY ADV. SRI.GEORGE BOBAN, S.C R4 & R5 BY ADV. SRI.SAJEEVKUMAR K.GOPAL, S.C** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 28575 of 2016 (V) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE LETTER DATED 24.02.1994.** **EXHIBIT P2: TRUE COPY OF THE LETTER DATED 03.05.1994.** - **EXHIBIT P3: TRUE COPY OF THE REPLY DATED 07.05.1994 MADE BY THE PETITIONER.** - **EXHIBIT P4: TRUE COPY OF THE LETTER DATED 17.08.1994 ISSUED BY THE CHIEF ENGINEER OF THE 2ND RESPONDENT.** - **EXHIBIT P5: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 09.06.2004.** - **EXHIBIT P6: TRUE COPY OF THE NOTICE OF DEMAND ISSUED BY THE 3RD RESPONDENT DATED NIL.** - **EXHIBIT P7: TRUE COPY OF THE REPLY MADE BY THE PETITIONER DATED 18.02.2009.** **EXHIBIT P8: TRUE COPY OF THE NOTICE DATED 17.11.2014.** **EXHIBIT P9: THE REQUEST OF THE PETITIONER DATED 15.01.2016.** **EXHIBIT P10: TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 11.07.2016.** **EXHIBIT P11: TRUE COPY OF THE APPLICATION DATED 05.08.2016.** - **EXHIBIT P12: TRUE COPY OF THE RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 05.08.2016.** - **EXHIBIT P13: TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT DATED 06.07.2016.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) No. 28575 of 2016 ================== Dated this, the 31[st] day of August, 2016 ## **J U D G M E N T** ## Petitioner had approached this Court seeking for the following reliefs:- _“(1) Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 4 and 5 to provide electric connection to the petitioner pursuant to Exhibit P11 within a time limit prescribed by this Hon'ble Court and without insisting any consent from respondents 1 to 3.”_ 2. The issue is in regard to obtaining power connection to the portion of the building in occupation of the petitioner Bar Association as well as the Clerks' Association. It is submitted that earlier power connection was obtained from the power connection supplied to the Sub Court. However, on account of certain disputes with regard to the same, petitioner applied for a fresh connection. Kerala State Electricity Board (for short “KSEB”) by Ext.P13 requested the petitioner to obtain consent from the Kerala State Housing Board (for short “KSHB”). According to the petitioner, no such permission is required and therefore KSEB was not justified in W.P(C) No.28575/16 -:2:- insisting for consent from KSHB. It is inter alia contended that the petitioner Bar Association was having its own premises earlier and with the consent of the petitioner, the said building had to be demolished and sufficient space had been given to the Bar Association in the new building constructed by the KSHB. The Advocate Clerks' Association was also given permission to occupy a portion of the said premises. KSHB is now insisting that the Association will have to pay an amount of more than `6 lakhs as amenity charges, which according to the petitioner, they are not liable to pay. The consent is being denied only on account of the said fact. Learned senior counsel appearing on behalf of the petitioner submits that though there is stipulation under Regulation 45(2) of the Kerala Electricity Supply Code, 2014 that consent of the owner of the property is required, it is submitted that since the petitioner himself is the owner of the property, consent of the KSHB is not required for obtaining power connection. Reference is made to Ext.P10, which is a certificate issued by the Municipality regarding ownership of the premises having Building No.XXIV/353. It is therefore contended that there was no justification on the part of the Board to have insisted for W.P(C) No.28575/16 ## -:3:- consent from the KSHB. Learned senior counsel relied upon the judgment of this Court in Hindustan Petroleum Corporation Ltd. v. Kerala State Electricity Board Ltd. (2015 (5) KHC 794) to contend that when landlord does not provide for consent, when admittedly a person is the tenant of the premises, consent cannot be insisted for granting power connection. 3. On the other hand, learned counsel appearing for the KSHB submits that petitioner has been permitted to occupy the premises on the basis of lease agreement dated 3/3/2005 with the KSHB. Therefore, the contention regarding ownership over the premises is not correct, which is also evident from Ext.P5 Government Order. It is further submitted that earlier power connection was obtained from the Sub Court which had given rise to certain objection and it is in the said circumstances that the power connection had been disconnected to the aforesaid premises. It is also submitted that the persons who are occupying the premises have formed an Association, in which the petitioner is also a member and as per the terms and conditions stipulated by the Association, amenity charges and common expenditure has to be shared between all the occupants which is provided W.P(C) No.28575/16 -:4:- under the agreement itself. As per the said provision, the petitioner is liable to pay an amount of `6,38,306/- which includes amenity charges and municipal tax along with interest on the arrears. Since no such amount has been paid, the question of providing consent for the power connection does not arise. However, the petitioner Association had approached the Government and direction had been issued to provide necessary consent and to recover the amount from the petitioner. 4. Having regard to the aforesaid factual issues, I do not think it necessary for this Court to go into the merits of the contentions urged. As far as Ext.P13 is concerned, the KSEB had taken a view that consent of KSHB is required since the KSEB proceeded on the basis that the ownership vested in the KSHB. There is dispute between the petitioner and the KSHB regarding the right of ownership. Petitioner relies upon Ext.P10 to show that a certificate has been issued by the local authority. On the other hand, KSHB relies upon lease agreement executed between the parties. That apart, it is stated that the building number shown in Ext.P10 is not correct and the actual number is XXIV/361. 5. Be that as it may, taking into account the submissions W.P(C) No.28575/16 -:5:- made on either side, I am of the view that it is rather clear that the Bar Association primarily requires power connection, which cannot be denied. It is an admitted fact that the Bar Association is in possession of the said premises. The dispute is between the Association constituted for the purpose of recovering common amenity charges and the Bar Association. Such dispute shall not be a reason to deny power connection. Still, taking into account the factual circumstances involved in the matter, I am of the view that the following directions can be issued to enable the Bar Association to obtain power connection. (i) That the KSHB shall give appropriate consent to the KSEB to provide power connection to the petitioner on the petitioner remitting `50,000/- (Rupees Fifty Thousand only) towards the arrears of amenity charges. (ii) The consent shall be given within three days from the date of payment of the said amount. (iii) The KSEB shall thereafter take appropriate steps to provide the electric connection. (iv) The payment of the aforesaid amount shall be without prejudice to the contentions urged by the petitioner as far as their W.P(C) No.28575/16 -:6:- obligation to pay the amenity charges are concerned. Writ petition is disposed of as above. Sd/- **A.M. SHAFFIQUE, JUDGE** Rp31/08/2016 //True Copy// P.S to Judge