Theresa Jose v. Kerala State Electricity Board (KSEB)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 1[ST] DAY OF APRIL 2022 / 11TH CHAITHRA, 1944 WP(C) NO. 9423 OF 2022** ## **PETITIONER:** ||THERESA JOSE,| |---|---| ||PROPRIETOR, COCHIN GRANITES, 9/305B,| ||EDAKKATUUKAYATTAM, MUVATTUPUZHA – THODUPUZHA ROAD| ||MADAKKATHANAN P.O., MUVATTUPUZHA - 686670.| ||BY ADVS.| ||BRIJESH MOHAN| ||RESMI G. NAIR| ||SACHIN RAMESH| |**RESPONDENTS:**|| |1|KERALA STATE ELECTRICITY BOARD - KSEB| ||REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,| ||VYDYUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.| |2|THE ASSISTANT EXECUTIVE ENGINEER| ||KSEB MUVATTUPUZHA SUB DIVISION, T B JUNCTION,| ||THOTTUMKALPEEDIKA, MUVATTUPUZHA-686673.| |3|ASSISTANT ENGINEER| ||KSEB, KSEB ELECTRICAL SECTION, MANJALLOOR,| ||ARIKUZHA-VAZHAKULAM ROAD, MANJALLOOR| ||VAZHAKULAM, ERNAKULAM-686670.| |4|SUB ENGINEER| ||KSEB, KSEB ELECTRICAL SECTION, MANJALLOOR,| ||ARIKUZHA – VAZHAKULAM ROAD, MANJALLOOR,| ||VAZHAKULAM, ERNAKULAM-686670.| ||SRI.B.PREMOD, SC, KSEB| |THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON|| |01.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:|| 2 WP(C) NO.9423/2022 ## **JUDGMENT** The grievance of the petitioner in the instant Writ Petition as per the pleadings and annexures is that the respondent Electricity Board is not considering shifting of the electric connection bearing consumer No.1157522012050 installed in building No.IX/339B to building No.305/B/Ward No.9. 2. Succinctly the facts in brief are that the petitioner is running business of granites, marbles, tiles and building materials and accessories under the name and style Cochin Granites at Madakkathanam P.O., Manjaloor. Rent agreement dated 9.11.2016 in respect of the land bearing 23.47 ares of property situated in S.No.20/10/2 and 20/10/1 was entered into between the petitioner and the landlord as per the contents of sale deed No.529/2007. 3. Learned counsel for the petitioner submitted that when the lease agreement was entered there existed a small building. A licence was granted by the landlord to construct a new building so that the petitioner could carry on the business activities. In furtherance of the said licence, the petitioner constructed a three storied building in the said property spending over Rupees One Crore as evident from Ext.P1 building permit dated 26.7.2017. Ext.P2 Sanitation certificate dated 3 WP(C) NO.9423/2022 18.12.2020 from Manjalloor Grama Panchayath was also secured. The aforementioned building was given LT-VIIA tariff electricity connection. On expiry of the aforementioned agreement, new rent agreement dated 1.1.2021 Ext.P3 was executed. The new building was given number 9/305B. On 12.1.2022, an inspection was carried out by the Sub Engineer on the basis of a complaint filed by Rajina Rahim, landlord, who had in the meantime turned inimical and greedy on seeing humongous construction. On the basis of the aforementioned inspection, a notice dated 30.1.2022 intimating the connection of excess load of 7139 watts was issued to the petitioner. Petitioner received a provisional assessment bill dated 22.1.2022 as per Section 153 of the Electricity Supply Code 2014 fixing the amount at Rs.52,424/-. The petitioner submitted an application Ext.P5 by online for electricity connection to increase the load, but the same was rejected by communication Ext.P7 dated 4.2.2022 and was also called upon to pay the outstanding charges of Rs.59,913/-. 4. Learned counsel for the petitioner would submit that the conditions of Section 45 of the Electricity Supply Code, 2014 cannot be complied with as there is already a dispute with the landlord pending in the court. The landlord had attempted to obstruct the passage and 4 WP(C) NO.9423/2022 other amenities for ingress and egress etc. of the petitioner for a which a civil suit O.S.No.344 of 2021 has been filed which is pending adjudication, wherein on I.A.No.3 of 2021, an Advocate Commissioner was appointed who submitted a report along with rough sketch. 5. In support of the aforementioned contention, learned counsel relied upon unreported judgments of this Court in Writ Petition bearing No.29229 of 2015 decided on 26.11.2015 _**Hindustan Petroleum Corporation Ltd. v. KSEB**_ and Writ Petition No.10814 of 2019 decided on 23.5.2019 titled as _**Shalif Mohammed Nahas v. KSEB.**_ In all the aforementioned judgments, similar disputes were in existence and the Electricity Board was insisting for the NOC and other documents as prescribed under sub-section (1) of Regulation 45 of the Electricity Supply Code and the said requirement was dispensed with. 6. On the other hand learned counsel appearing on behalf of the respondent Electricity Board submitted that until and unless the dues amounting to Rs.59,913/- as per the provisional assessment order is not challenged, has to be cleared by the consumer for acceding to the request of the petitioner though there is no provisions for shifting of the electricity only new connection can be issued. 7. I have heard the counsel for the parties and appraised the 5 WP(C) NO.9423/2022 ## paper book. 8. Before I could deal with the provisions of Regulation 45 and the contentions of the parties viz. -a- viz. the judgments cited at bar, learned counsel for the petitioner informed the court that appropriate legal remedy has been availed against the demand based on the overload of electricity. Therefore, the electricity people cannot insist for payment of the said amount for consideration of the request of the petitioner for shifting of the electricity connection to the newly constructed building which has been assigned number as 9/305B. 9. It would be apt to re-produce Regulation 45 of the Kerala Electricity Supply Code, 2014. **“45. Proof of ownership or occupancy of the premises** .- (1) The licensee shall accept any of the following documents as proof of ownership or occupancy of premises:- (i) certified copy of title deed or lease agreement; (ii) letter of authorisation from the Punja / Kole Special Officer in the case of agricultural connections for dewatering; (iii) ownership certificate from Municipal Corporation or Municipality or Panchayat or Township in the case of buildings; (iv) ownership certificate issued by competent revenue authority in the case of land; (v) letter of allotment in the case of industrial estates or industrial parks or Special Economic Zones; (vi) possession certificate from Revenue authorities. (2) An applicant who is not an owner but an occupier of the premises, shall furnish a no objection certificate from the owner of 6 WP(C) NO.9423/2022 the premises along with any one of the documents listed at clauses (i) to (vi) in subregulation (1) above.” On perusal of the same an applicant for new connection or shifting of the connection is not an owner but occupier of the premises, is required to furnish no objection certificate from the owner of the premises along with any of the documents specified in clauses 1(i) to (vi) of the Regulation. The aforementioned provisions of the Regulation had been deliberated upon in the judgments cited wherein, in one of the matters, Regulation was challenged on the ground that Electricity Supply Code do not envisage any situation where there is a dispute between the landlord and the tenant and the occupier of the building would be deprived of the usage of the electricity despite the fact that humongous amount has been spent on the construction. This Court had come to the rescue of such tenants. It would be appropriate to extract relevant portion of the aforementioned judgments. ## WPC No.29229 of 2015 _“9. The petitioner, who is the sub-lessee, raise a contention that the petitioner ought to be granted electricity connection in the demised premises, which is in possession and enjoyment of the petitioner on a valid lease. A similar issue had arisen before this Court, in which another learned Single Judge disposed of the case by judgment dated 13.11.2015 in W.P.(C) No.20206 of 2015. Therein, the petitioner was a tenant who was faced with a similar problem of no consent having been received from the owner of the property who had validly leased out a shop room to the petitioner therein. Though Regulation 45 of the Supply Code of 2014 was challenged therein also, it was held so in paragraph 4:_ _“4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the insistence_ 7 WP(C) NO.9423/2022 _by the respondent Board of a no objection certificate, as also a land tax receipt, from the owner of the building, under circumstances where there is a dispute between the owner of the building and the tenant that is pending consideration before this Court, would result in a situation where it would be impossible for the petitioner [the tenant] to apply for a restoration of the electric connection to the premises. I therefore feel that the interests of justice would be served by directing the respondents 1 to 3 to forthwith restore the electrical supply to the premises in question, subject to the petitioner complying with the attendant formalities in connection with the same, other than the requirement of production of the documents mentioned in Ext.P1. It is made clear that the mere restoration of electric supply to the premises of the petitioner will not prejudice the contentions of the 4[th] respondent in the Rent Control Appeal that is stated to be pending before the District Court, at the instance of the petitioner”._ _10. This Court is inclined to follow the above-said directions insofar as granting the petitioner the liberty for continuance of the electricity connection even de hors the permission/consent from the 4[th] respondent herein. It is also to be noticed that in the aforesaid judgment it was noticed that there was a Rent Control Petition pending and the judgment passed would be subject to the result of the Rent Control Petition. The factual facts which have been agitated herein would be left open to be agitated before the appropriate forum, if the 4[th] respondent is so advised. Thus, without going into the merits of the contentions raised herein as to the terms and extent of lease, the writ petition is allowed, directing the respondent-Board, as of now to give a fresh connection to the dealership which was existing there. Parties are left to suffer their respective costs.”_ ## WPC No.10814 of 2019 _“5. In the afore perspective and since no prejudice will be caused to the 4th respondent in any manner, I direct the 2nd respondent to consider Ext. P5 application of the petitioner for conversion of single phase connection to three phase connection, strictly in terms of law and after ensuring that all bills for electric consumption, past or present, as well as penal bills are fully honoured by the petitioner and that all safety requirements, including statutory requirements, are available in the premises, so as to accommodate the three phase connection as requested. I make it clear that even if the three phase connection is granted to the petitioner in terms of this judgment, he would not obtain any benefit, either in law or in equity, and if the 4th respondent succeeds in the litigation between them, the petitioner cannot claim any special right merely on account of the directions in this judgment._ _6. I am also persuaded to this course because it is now settled law through the judgments of this Court that NOC of landlord is not necessary even for grant of fresh electric connection. Therefore, the mere conversion of single phase to three phase would certainly be a better claim.”_ Keeping in view the decision of law as aforesaid, I allow the Writ 8 WP(C) NO.9423/2022 Petition by issuing directions to the respondents to consider the application of the petitioner submitted manually vide Ext.P5 instead of the one submitted through online for shifting of the electricity connection bearing consumer No.1157522012050 as well as for increase of the load to the newly constructed building No.9/305B without insisting for payment of the outstanding dues as the petitioner has already availed the remedy before the appropriate forum, and subject to any orders passed by the appellate court, with a rider that in case the petitioner loses the litigation the said amount will be cleared as and when litigation is brought to logical conclusion. Let this exercise for shifting of the electricity connection or giving the nomenclature of new connection be undertaken within a period of one month from the date of receipt of a certified copy of the judgment. **Sd/AMIT RAWAL JUDGE** csl 9 WP(C) NO.9423/2022 ## **APPENDIX OF WP(C) 9423/2022** |PETITIONER'S EXHIBITS|PETITIONER'S EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF THE BUILDING PERMIT DATED| ||26.07.2017 OBTAINED BY THE PETITIONER.| |Exhibit P2|TRUE COPY OF THE SANITATION CERTIFICATE DATED| ||18.12.2020 OBTAINED BY THE PETITIONER ALONG WITH| ||ENGLISH TRANSLATION.| |Exhibit P3|TRUE COPY OF THE NEW RENTAL AGREEMENT DATED| ||01.01.2021 ENTERED BETWEEN THE PETITIONER AND| ||THE LANDLORD ALONG WITH ENGLISH TRANSLATION.| |Exhibit P4|TRUE COPY OF THE NOTICE DATED 13.01.2022 ISSUED| ||BY THE 2ND RESPONDENT TO THE PETITIONER ALONG| ||WITH ENGLISH TRANSLATION.| |Exhibit P5|TRUE COPY OF THE APPLICATION OF THE PETITIONER| ||TO THE 2ND RESPONDENT.| |Exhibit P5(a)|TRUE COPY OF THE ACKNOWLEDGMENT CARD ISSUED BY| ||THE POSTAL DEPARTMENT.| |Exhibit P6|TRUE COPY OF THE PROVISIONAL ASSESSMENT BILL| ||DATED 22.01.2022.| |Exhibit P7|TRUE COPY OF THE NOTICE DATED 04.02.2022 ISSUED| ||BY THE 3RD RESPONDENT TO THE PETITIONER ALONG| ||WITH ENGLISH TRANSLATION.| |Exhibit P8|TRUE COPY OF THE NOTICE DATED 25.02.2022 ISSUED| ||FROM THE OFFICE OF 2ND RESPONDENT TO THE| ||PETITIONER ALONG WITH ENGLISH TRANSLATION.| |Exhibit P9|TRUE COPY OF THE COMMISSION REPORT DATED| ||15.12.2021 SUBMITTED BEFORE THE MUVATTUPUZH| ||MUNSIFF COURT ALONG WITH ENGLISH TRANSLATION.| |Exhibit P10|COPY OF JUDGMENT DATED 13.11.2015 IN WPC| ||202056/23015 OF THIS HON'BLE COURT.|