Smt. Mary Philip v. Kerala State Electricity Board Limited and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **WEDNESDAY, THE 4TH DAY OF MARCH 2015/13TH PHALGUNA, 1936** ## **WP(C).No. 1115 of 2015 (L)** ## **---------------------------** ## **PETITIONER :** **--------------------** **SMT. MARY PHILIP AGED 69 YEARS W/O. REV. M.T. PHILIP (LATE), RESIDING AT FLAT NO.1-B CRYSTAL APARTMENTS, RAJASILPAM, KOTTAYAM DISTRICT.** **BY ADV. SRI.A.J.VARGHESE** ## **RESPONDENT(S) :** - **----------------------------** **1. THE KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVANAM PATTOM, THIRUVANANTHPAURAM-695 004.** **2. THE ASSISTANT ENGINEER** - **ELECTRICAL SECTION KERALA STATE ELECTRICITY BOARD LIMITED KOTTAYAM CENTRAL, PIN-686 001.** **3. M/S.CRYSTAL APARTMENTS** - **CSI COMMERCIAL COMPLEX, BAKER JUNCTION KOTTAYAM DISTRICT REPRESENTED BY ITS MANAGING PARTNER** - **SRI.BINNY ITTY, PIN – 686 001.** ## **4. P.LALITHAMMA** - **W/O.LATE RAGHAVAN PILLAI, I-B CRYSTAL APARTMENTS RAJASOOYAM, GOVINDAPURAM KARA KOTTAYAM, PIN-686 001.** **R1 & R2 BY ADVS. SRI.JAICE JACOB, SC R4 BY SENIOR ADVOCATE SRI.K.RAMAKUMAR** **BY ADVS. SRI.S.M.PRASANTH SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU** **SMT.JINNU SARA GEORGE SMT.AMMU CHARLES SRI.G.RENJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2015, ALONG WITH WPC. 1885/2015, THE COURT ON 04-03-2015 DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 1115 of 2015 (L)** ## **-------------------------------------** ## **APPENDIX** **PETITIONERS' EXHIBITS : -------------------------------------** **EXT.P1. A TRUE COPY OF THE SALE DEED NO.3398/1/2009 DATED 19/12/2009. EXT.P2. A TRUE COPY OF THE TAX RECEIPT DATED 24/4/2014 ISSUED BY THE VILLAGE OFFICER, KOTTAYAM. EXT.P3. A TRUE COPY OF THE ORDER DATED 21/7/2014 ISSUED BY THE ELECTRICAL INSPECTOR, DEPARTMENT OF ELECTRICAL INSPECTORATE, KOTTAYAM. EXT.P4. A TRUE COPY OF THE LETTER DATED 1/1/2014 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P5. A TRUE COPY OF THE SALE DEED DATED 7/12/2007. EXT.P6. A TRUE COPY OF THE JUDGMENT DATED 15/11/2013 IN WPC NO.9872/2012. RESPONDENT(S)' EXHIBITS : ------------------------------------------EXT. R1(A) COPY OF THE APPLICATION DATED 8/8/2014 SUBMITTED BY THE THIRD RESPONDENT. EXT. R1(B) COPY OF NOTICE DATED 25/10/2014 ISSUED BY THE 2ND RESPONDENT TO THE FOURTH RESPONDENT. EXT. R1(C) COPY OF THE LETTER DATED 1/11/2014 SENT TO THE THIRD RESPONDENT BY THE 2ND RESPONDENT. EXT. R1(D) COPY OF THE CERTIFICATE DATED 8/8/2014 ISSUED BY THE REVENUE OFFICER, KOTTAYAM MUNICIPALITY. EXT. R4(a) COPY OF THE REPRESENTATION DATED 30.10.2014 SUBMITTED BEFORE THE VIGILANCE DEPARTMENT.** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) Nos. 1115 & 1885 of 2015 -------------------------------------------------Dated this the 4[th] day of March, 2015** ## **J U D G M E N T** These writ petitions are filed seeking for a direction to the respondent Board to provide electricity connection to a newly constructed apartment, by name, 'Rajasilpam', within the local limits of Kottayam Municipality. 2. WP(C) No.1885/2015 is filed by the builder of the 'Rajasilpam Apartment' along with an allottee of one of the flats in the said apartment; and WP(C) No.1115/2015 is filed by another allottee of a flat in the said apartment. The grievance raised by these petitioners is that the respondent Board is not providing electricity connection to the apartment for the reason that the previous owner of the property (She is the 3[rd] respondent in WP(C) No.1885/2015 and the 4[th] respondent in WP(C) No.1115/2015) has raised an objection regarding the use of a way to the said apartment. W.P.(C) Nos. 1115 & 1885 of 2015 ..2.. ## 3. In WP(C) No.1115/2015, the petitioner alleges as follows; Petitioner, her son and daughter-in-law together purchased an apartment No.1-B admeasuring 1390 sq.ft super built-up area on the 1[st] floor and covered car parking area marked as No.1-B in the building, by name, Crystal Apartments Rajasilpam, paying the entire sale consideration, from the 3[rd] respondent on 19.12.2009 as per Ext.P1. Since the construction was ongoing, the petitioner and her family could not stay in the building. However, they started to reside in the building from November 2014 onwards. The petitioner's children are presently working outside India and the petitioner alone is staying in the above apartment. The 3[rd] respondent informed the petitioner that though the electrical inspectorate, as per Ext.P3, has approved and granted energization order for 15 flats including that of the petitioner, the 2[nd] respondent is not effecting electric supply stating that the 4[th] respondent has raised certain objections. Chapter III of the Kerala Electricity Supply W.P.(C) Nos. 1115 & 1885 of 2015 **==> picture [20 x 8] intentionally omitted <==** Code, 2014 deals with general conditions of supply of electricity. Regulation 27(2) clearly states that licensee shall, on an application in the proper form from the owner or lawful occupier of any promises located in his area of supply, give supply of electricity to such premises within the time specified in the Code; and as per Regulation 81, the supply had to be given within 7 days from the date of receipt of application form in a case, wherein distribution mains is not required. Regulation 45 deals with proof of ownership or occupancy of the premises, wherein it is clearly stated that the licensee shall accept any of the following documents as proof of ownership or occupancy of premises, which includes certified copy of the title deed or lease agreement. The petitioner is one of the owners in possession of the property/building, which is numbered as Apartment No.1-B, on the 1[st] Floor of the Crystal Apartment Rajasilpam and is staying in the said apartment after purchasing the same from the 3[rd] respondent. All the formalities for getting separate connection for the 15 flats under LT-IA W.P.(C) Nos. 1115 & 1885 of 2015 **==> picture [20 x 8] intentionally omitted <==** tariff have been approved by the electrical inspectorate; and hence, there is no impediment for the 2[nd] respondent to give electric connection under LT-IA tariff. Hence, the stand taken by the 2[nd] respondent in Ext.P4 is legally unsustainable; and hence, this writ petition is filed for appropriate reliefs. ## 4. In WP(C) No.1885/2015, the petitioners alleged as follows; The 1[st] petitioner, who is the managing partner of M/s.Crystal Apartments, constructed an apartment by name, Crystal Apartments 'Rajasilpam'; and all the 15 flats were sold; and the 2[nd] petitioner purchased a flat No.4-A in the said apartment. The 3[rd] respondent's husband was the original owner of the property, from whom the 3[rd] respondent and her daughter got right as per Ext.P2 will deed; and the 1[st] petitioner purchased the said property as per Ext.P3. As per Ext.P1, the 2[nd] petitioner purchased Flat No.4A in the apartments. There are certain disputes between the 1[st] petitioner and the 3[rd] respondent; and the 3[rd] respondent on W.P.(C) Nos. 1115 & 1885 of 2015 **==> picture [20 x 8] intentionally omitted <==** earlier occasion approached this Court when the 1[st] petitioner sought for electric connection to the flats; and this Court, vide Ext.P5 judgment, directed the respondent Board to consider the application under relevant regulations after hearing the parties. Thereafter, the Electrical Inspector, Kottayam, as per Ext.P6, approved energization order for 15 flats including the flat purchased by the 2[nd] petitioner; and thereafter, the 1[st] petitioner remitted the necessary application fee as per Ext.P7. However, the 2[nd] respondent, vide Ext.P8, stated that 3[rd] respondent objected the application; and hence, connection cannot be given. The stand taken by the 2[nd] respondent is against Section 43 of the Electricity Act and also against the decision in **Syam Das Bank** vs. **West Bengal State Electricity Distribution Com. Limited** [AIR 2011 Cal.28], wherein it is held that Section 43 of the Electricity Act, 2003 provides for either the owner or occupier of premises to make an application for electricity. In the decision, it was held that a co-owner can apply for electricity supply and distribution licensee cannot insist on consent of other co-owners before W.P.(C) Nos. 1115 & 1885 of 2015 **==> picture [20 x 8] intentionally omitted <==** supply is provided. In the light of the above settled position, the denial of the connection to 15 flats including the flat owned by the 2[nd] petitioner is illegal. The 2[nd] petitioner started to stay in the flat No.4-B from October, 2014 onwards; and the supply to the premises, which was given under LT-VIIA tariff is disconnected on 16.01.2015 in spite of the fact that there is no due to the KSEB. Hence, this writ petition is filed to give power connection to the 15 flats including Flat No.4A occupied by the 2[nd] petitioner forthwith and for other reliefs. 5. In WP(C) No.1115/2015, the respondent Board has filed a counter affidavit alleging that no application has been submitted by the petitioners as per law. 6. This Court, by a common judgment in WP(C) No.31437/2010 and connected cases, upheld the issuance of occupancy certificate by the respondent municipality and permission was also granted to the builder/occupants to approach the respondent municipality to get the irregularities, if any, pointed out by the municipality W.P.(C) Nos. 1115 & 1885 of 2015 **==> picture [20 x 8] intentionally omitted <==** regularized after rectifying the defects. As the allottees have started residing in the apartments, it is only just and proper to direct the respondent Board to grant connection to 'Rajasilpam Apartments'. 7. The apex court in **Chandu Khamaru** vs. **Nayan Malik & Others** [(2011) 12 SCC 314] has observed that the distribution company, being under legal obligation to supply electricity, cannot deny supply on the ground of dispute. Therefore, the respondent Board is bound to provide service connection to the apartments owned by the petitioners if their applications are in order. Therefore, these writ petitions are disposed of directing the respondent Board to consider the applications, if any, submitted by the petitioners and to provide service connection forthwith on production of proof of ownership of the apartments if the applications are otherwise in order and are pending. If anyone of the petitioners has not submitted application so far, it shall be open to such petitioner to submit applications for W.P.(C) Nos. 1115 & 1885 of 2015 **==> picture [20 x 8] intentionally omitted <==** service connections; and in the event of filing such an application for service connection along with proof of ownership of the apartment, service connection shall be provided to the said applicant without any delay. Sd/- **A.V. RAMAKRISHNA PILLAI JUDGE** bka/-