Kamakshy Grama Panchayat v. Annamma Philip & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** **WA.No.2140 OF 2019** # **AGAINST THE ORDER/JUDGMENT IN WP(C) 14157/2019(T) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 3 & 4:** **1 KAMAKSHY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, THANKAMONY POST, IDUKKI DISTRICT - 685609. 2 SECRETARY, KAMAKSHY GRAMA PANCHAYAT, THANAKAMONY POST, IDUKKI DISTRICT - 685 609.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2:** **1 ANNAMMA PHILIP, AGED 77 YEARS, W/O.PHILIP THEKKEL HOUSE, PRAKASH POST, IDUKKI DISTRICT - 685 609. 2 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM - 695 004. 3 ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, PAINAVU POST, IDUKKI DISTRICT, PIN - 685 603.** **R1 BY ADV.SRI.P.K.RAVI SANKAR R2 & R3 BY ADV.SRI.N.SATHEESH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.2140/2019 2 ## **JUDGMENT** ## **S.Manikumar C.J.** Instant appeal is directed against judgment dated 24.06.2019 made in W.P.(C) No.14157 of 2019 by which, writ court granted liberty to the writ petitioner to avail statutory remedy against Agenda No.5 in Exhibit-P6 resolution of Kamakshy Grama Panchayat, Idukki District, appellant No.1 herein, and further directed the Kerala State Electricity Board Limited, respondent No.2, not to disconnect electric supply to the writ petitioner's premises pursuant to Exhibit-P8 notice bearing No.G.B.-2019-20/Service Connection/18 dated 27.04.2019, until such time as the actual demolition of the premises is undertaken by Panchayat in terms of law. Writ court further directed that in the event of Panchayat demolishing the building as per law, respondent No.2 shall render all assistance, including disconnection of electric supply, so as to effectuate such demolition without any hindrance from the writ petitioner. 2. Short facts leading to the appeal are that, writ petitioner was conducting a bakery and cool bar in Survey No.1/1 at Attuparathavalam, Thankamony village, Idukki district, for the last 27 years. By letter dated 27.04.2019, Ex-Assistant Engineer, Kerala State Electricity Board Ltd., Electrical Section, Painavu, respondent No.3 herein, informed the writ petitioner that W.A.2140/2019 3 Secretary, Kamakshy Grama Panchayat has issued letter dated 17.04.2019 to Ex-Assistant Engineer, KSEB Ltd., Painavu, stating that Sri.James Karikoottathil has constructed a new building in the place of existing building, in violation of the Kerala Panchayat Building Rules and in such circumstances, proposing to disconnect electric supply, and under Regulation 138(e&k) of the Supply Code, 2014, explanation has been called for by the Assistant Engineer, Kerala State Electricity Board Ltd., Painavu, as to why electric supply should not be disconnected. 3. Being aggrieved, writ petition has been filed for a writ of certiorari quashing Exhibit-P8 notice dated 27.04.2019 and declare that decision as per Agenda No.5 of Exhibit-P6 resolution of appellant Panchayat dated 30.03.2019 is null and void, inoperative and not binding on the writ petitioner. 4. Before writ court, contention has been made by the writ petitioner that Exhibit-P8 notice dated 27.04.2019 of Ex-Assistant Engineer, KSEB Ltd., Painavu, is completely unwarranted, since the building in question is used by the writ petitioner for licensed purpose. Contention has also been made that there is no requirement for the KSEB to disconnect electric supply, mainly because, some decision has been taken by Panchayat to proceed against the writ petitioner for the construction in question. Further contention W.A.2140/2019 4 has also been made that Agenda No.5 in Exhibit-P6 dated 30.03.2019 resolution of appellant Panchayat is untenable in law, since it has been issued without notice to the writ petitioner and when there is violation of the principles of natural justice, writ would lie. 5. Before writ court, Kamakshy Grama Panchayat, represented by its Secretary, respondent No.3 therein, has filed a counter affidavit, contending that the writ petitioner has been served with a valid notice before Exhibit-P6 decision was taken and, therefore, there is no violation of the principles of natural justice. It is further contended that a Sub Committee, which has been constituted, had inspected the construction in question and found the same to be in a dangerous condition and, therefore, demolition of building was inevitable in law. On the basis of above said reasons, respondent No.3 has sought for dismissal of the writ petition. 6. Adverting to the above submissions and contentions, writ court in the impugned judgment, ordered thus:- “4. Even when I hear the learned counsel for the parties as afore, the fact remains that question as to whether a valid notice issued to the petitioner prior to the Panchayat having adopted agenda No.5 in Ext.P6 is not one that can be considered by this Court, while acting under Article 226 of the W.A.2140/2019 5 Constitution of India, since it is a dispute in the factual realm. The petitioner will certainly have to invoke her alternative statutory remedies by approaching the Statutory Forum for this, in terms of law. 5. That said, the surviving issue is whether the KSEB should now disconnect the electric supply to the petitioner's premises merely because the Panchayat has taken a decision to proceed against the construction in question. I am afraid that even though the Panchayat might have addressed a letter to the KSEB to disconnect the electric supply, it is premature to do so because unless the building is actually demolished, then there is no need for electric supply to be disconnected. If the electric supply is now disconnected even when the building is left in tact, it would only amount to a punishment of sorts to the petitioner, which cannot be justified in terms of any applicable Law or Regulations. In the afore circumstances, I order this writ petition granting liberty to the petitioner to invoke and pursue all her available statutory remedies against agenda No.5 in Ext.P6 minutes of the Panchayat and I further direct the KSEB not to disconnect electric supply to the petitioner's premises pursuant to Ext.P8, until such time as the actual demolition of the premises is undertaken by the Panchayat in terms of law.” 7. Being aggrieved by the judgment in W.P(C) No.14157 of 2019 dated 24.06.2019, instant writ appeal is filed on the following grounds: W.A.2140/2019 6 “A. Chapter VIII of Kerala Electricity Supply Code 2014 deals with disconnection, dismantling and re-connection. Regulation 138 of the Supply Code deals with grounds for disconnection. The relevant provisions that are applicable are Regulations 138 (1) (e) and (k) of Supply Code, 2014 and those provisions are quoted hereunder for easy reference:- "138 (1), The licensee shall not disconnect the supply of electricity to any consumer except on any one or more of the following grounds:- (e) If the conduct or continuance of any business or industry or activity being carried out in any premises becomes unlawful due to lack of necessary permission from the competent authority or due to the withdrawal of such permission by any competent authority". (k) If the consumer is found to have altered the position of the meter and related apparatus or if the consumer uses any apparatus or appliance other than ones authorized by the licensee;.............................” In the case on hand, the 1[st] respondent/petitioner carried out illegal constructions to an existing building without permission of the Panchayat and also carried out the construction in violation of the Kerala Panchayat Building Rules. Such a person who has no respect to the laws of the land is not entitled to get any relief as granted the impugned judgment. It is settled legal proposition that where a person gets an order by making misrepresentation or playing fraud upon, such order cannot be sustained in the eye of law as fraud unravels everything. By suppressing materials facts, the writ petitioner obtained W.A.2140/2019 7 an interim order by contenting that prior to the issuance of item No.5 of agenda of Ext. P6, no notice was issued. B. It is respectfully submitted that the persons who are in occupation building Nos.XII/416 to 418 were given notices as evidenced by Ext.R4(b) which they have accepted on 11.1.2019. A temporary order was also issued directing to remove the unauthorized constructions as evidenced by Ext.R4(a). The lessees who have actually carried out the illegal constructions, have submitted Exts.R4(c) and R4(d) reply in January itself admitting the fact that they have carried out illegal constructions. A subcommittee was constituted to study the issue and after hearing the occupants who stated to have purchased the property, Annexure-R4(g) decision was taken and thereafter issued Ext.R4(h) notice to the KSE Board to requesting to take appropriated action. Subsequently, as per the Aasthi register of the Panchayat, it was found that the writ petitioner is the owner of the building Nos.XII/416 and 417 and hence issued Ext.R4(i) notice to which the writ petitioner sought for time to file explanation and thereafter submitted explanation to the Panchayat which was rejected.. Therefore the premises are illegally constructed one and the 1[st] respondent is legally not entitled to get electric connection. C. Since disconnection is stayed, the same would give a wrong signal to similarly situated persons to carry on illegal constructions. The judgment virtually permits to carry on an illegality and therefore interference of the judgment is highly necessary to see that the persons who are violators are not getting the protection of law. D. The Hon'ble Supreme Court in Kerala State Coastal Zone Management Authority v. State of Kerala and others reported in 2019 (3) KHC 9, held in similar situation that it is necessary for local W.A.2140/2019 8 authority to follow restrictions imposed by CRZ Notification, as amended from time to time. In the said judgment, question that was considered was whether the area in which the construction was carried out fell under CRZ-II or CRZ-III. The Court after examining, the finding of the committee, held that the area, at the time when the permits were granted fell under CRZ-III and held that the constructions carried out by the respondents are not legal. In the case on hand also the situation is identical and the construction carried out by James Thomas Karikkottathil and another, in the property owned by the 1st respondent herein is in total violation and disregard of the Kerala Panchayat Building Rules. Necessarily, the unauthorized construction carried out should be removed. 8. Though Mr.Julian Xavier J., learned counsel for the appellants, made submissions on the grounds extracted supra, on the issue that the writ petitioner has been issued with a valid notice prior to the impugned resolution, adopted as Agenda No.5 in Exhibit-P6, by observing that when service of notice was disputed by respondent No.1, disputed questions of fact cannot be adjudged in the writ petition. Writ court relegated the respondent to invoke the alternate remedy provided in accordance with law, to challenge Agenda No.5 in Exhibit-P6 minutes of the Kamakshy Grama Panchayat, represented by its Secretary, Idukki District, appellants herein. 9. On the aspect of disconnection of electric supply to the writ petitioner's premises, writ court further ordered that it is premature to do so, W.A.2140/2019 9 unless the building is actually demolished. Writ court also observed that if electric supply has to be disconnected, even when the building is in tact, it would only amount to punishment, which cannot be justified in terms of any law or regulations. Ultimately, writ court directed the Kerala State Electricity Board Ltd., not to disconnect electric supply to the petitioner's premise pursuant to Exhibit-P8 notice addressed by the Panchayat to the Electricity Board, until such time as actual demolition is undertaken in terms of law. Writ court further clarified that in the event of Panchayat demolishing the building as per law, then the Kerala State Electricity Board Limited shall render all assistance for disconnecting electric supply without any hindrance from the writ petitioner. 10. Kerala State Electricity Board Ltd., Thiruvananthapuram, respondent No.2 herein, has not filed any appeal against the impugned judgment. Effect of the directions issued by writ court is that when there are statutory remedies available, against Agenda No.5 in Exhibit-P6 resolution, writ petitioner should be given an opportunity of filing appeal to the competent authority and till final adjudication, electric supply should not be disconnected. As rightly ordered by writ court, if the building is demolished, there is nothing left for the writ petitioner to approach the statutory authority. Thus, exercising equitable jurisdiction under Article 226 of the Constitution of W.A.2140/2019 10 India, writ court has granted opportunity to challenge the resolution on the grounds, inter alia, as regards service of notice before the appellate authority and in the meanwhile, directed respondent No.2 not to disconnect electric supply. Decision of the writ court cannot be said to be wholly erroneous warranting intervention. Though, in the memorandum of grounds of appeal, appellants have raised grounds regarding unauthorised construction as well as alleged violation of Kerala Panchayat Building Rules, the same can be adjudicated as a defence in appeal. However, Mr. Julian Xavier, learned counsel for the appellants, submitted that so far, no appeal has been filed. On that ground alone, there is no need to reverse the impugned judgment. In such circumstances, appellants may inform respondent No.1, and act in accordance with law. Writ appeal is accordingly dismissed. Sd/- **S.MANIKUMAR, CHIEF JUSTICE** Sd/- **C.T.RAVIKUMAR, JUDGE** Krj.6/11 //TRUE COPY//