W.A. Nos. 930 of 2022 and 1563 of 2023

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023/22ND AGRAHAYANA, 1945 ``` ``` W.A.NO.930 OF 2022 ``` ``` W.P.(C)NO.14176 OF 2022 OF THE HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` M/S BIVERAH HOTEL AND SUITES, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011, REPRESENTED BY ITS PROPRIETOR, VENUGOPAL, AGED 63 YEARS, S/O K.N.KRISHNAN NAIR RESIDING AT T.C.23/1776, TJRA 134A, KRISHNA THULASI, PALACE GARDENS, PIPPINMOODU, SASTHAMANGALAM, THIRUVANANTHAPURAM, PIN - 695010 ``` ``` BY ADVS. K.SHAJ C.IJLAL ARUN CHAND BHARAT VIJAY P. VINAYAK G MENON K.K.RAJEEV (PUNNAPURAM) MINU VITTORRIA PAULSON ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THE ADDITIONAL DISTRICT MAGISTRATE, THIRUVANANTHAPURAM, DISTRICT COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM, PIN - 695043 ``` ``` 2KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, ``` 2 W.A.Nos.930 of 2022 and 1563 of 2023 ``` REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 605004 ``` ``` 3THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE (URBAN), K.S.E.B.L., POWER HOUSE BUILDING, THIRUVANANTHAPURAM, PIN - 695036 ``` ``` 4THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, K.S.E.B.L., ELECTRICAL DIVISION, KAZKAKUTTOM, THIRUVANANTHAPURAM, PIN - 695582 ``` - **`5 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, K.S.E.B.L.,`** ``` KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN - 695004 ``` ``` 6THE ASSISTANT ENGINEER, ELECTRICAL SESSION, ULLOOR, THIRUVANANTHAPURAM, PIN - 695011 ``` ``` 7ALI HAQ NAJEETH, NEZNA TOWER, SREEMOOLAM ROAD, KUMARAPURAM, THIRUVANANTHAPURAM, PIN - 695011 ``` ``` 8E.MOHAMMAD SAFEER, AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, ADDITIONAL DISTRICT MAGISTRATE, DISTRICT COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM, PIN - 695043 ``` ``` BY ADVS. PUBLIC PROSECUTOR RIJI RAJENDRAN, STANDING COUNSEL ARUN MATHEW VADAKKAN I.ARIF MUHAMMAD ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2023, ALONG WITH WA.1563/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.A.Nos.930 of 2022 and 1563 of 2023 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023/22ND AGRAHAYANA, 1945 ``` ## **`W.A.NO.1563 OF 2023`** ``` WP(C)NO.13879 OF 2022 OF THE HIGH COURT OF KERALA ``` ## **`APPELLANT/RESPONDENT:`** ``` VENUGOPAL AGED 63 YEARS S/O K.N.KRISHNAN RESIDING AT T.C.23/1776, TJRA 134A, KRISHNA THULASI, PALACE GARDENS, PIPPINMOODU, SASTHAMANGALAM, THIRUVANANTHAPURAM - 695010 PROPRIETOR M/S BIVERAH HOTEL AND SUITES, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011 ``` ``` BY ADVS. K.SHAJ C.IJLAL BEENA N.KARTHA ARUN CHAND BHARAT VIJAY P. MINU VITTORRIA PAULSON MAJID MUHAMMED K. GOPIKA GOPAL K.K.RAJEEV (PUNNAPURAM) ``` ``` RESPONDENTS/PETITIONER: ``` ``` 1ALI HUQ NAJEETH AGED 68 YEARS ``` 4 W.A.Nos.930 of 2022 and 1563 of 2023 ``` PANIKKAKUDY HOUSE, KURAKKANNI DESOM, VARKALA P.O., THIRUVANANTHAPURAM - 695141, OWNER OF NESNA TOWER, SREEMOOLAM, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011 ``` ``` 2COMMISSIONER OF POLICE THIRUVANANTHAPURAM CITY, C.V. RAMAN PILLAI ROAD, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014 ``` - **`3 CIRCLE INSPECTOR OF POLICE MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM DISTRICT, KERALA, PIN - 695011`** ``` 4SUB INSPECTOR OF POLICE MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM DISTRICT, KERALA, PIN - 695011 ``` ``` BY ADVS. ``` ``` ARUN MATHEW VADAKKAN I.ARIF MUHAMMAD(K/792/2007) ``` ``` SMT RASHMI K.M- SR GOVERNMENT PLEADER ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2023, ALONG WITH WA.930/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 W.A.Nos.930 of 2022 and 1563 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** These writ appeals filed under Section 5 of the Kerala High Court Act, 1958, arise out of a common judgment dated 12.07.2022 of the learned Single in W.P.(C)Nos.14176 of 2022 and 13879 of 2022. 2. W.A.No.930 of 2022 is one filed by the writ petitioner in W.P.(C)No.14176 of 2022, who is the proprietor of a hotel by name, Biverah Hotel and Suites, Kumarapuram, having a High Tension power supply of 155 KVA from 11 KV Kumarapuram feeder of Kerala State Electricity Board Ltd., from a Ring Main Unit (RMU) installed in front of his premises. The said writ petition was one filed seeking a writ of certiorari to quash Ext.P10 order dated 06.04.2022 of the 1[st] respondent Additional District Magistrate, Thiruvananthapuram, whereby it was ordered to provide electricity connection to the apartment of the 7[th] respondent Ali Haque Najeet, through the recommended route suggested by the 5[th] respondent Assistant Executive Engineer, Electrical Sub Division, Kesavadasapuram, and for other consequential reliefs. The reliefs sought for in that writ petition read thus; 6 W.A.Nos.930 of 2022 and 1563 of 2023 “a) to call for the records leading to the passing of Ext.P10 order dated 06.04.2022 by the 1[st] respondent and quash the same by the issuance of a writ of certiorari; b) to find that the 1[st] respondent had exceeded the jurisdiction conferred on him under Section 16(1) of the Indian Telegraphs Act, 1885 while passing Exhibit P10 order dated 06.04.2022 and in the event this Hon’ble Court finds that the 1[st] respondent has not exceeded his jurisdiction, then to direct the 1[st] respondent to dispose Exhibit P5 application preferred by the 5[th] respondent by giving due opportunity to the petitioner as per the dictum laid by this Hon’ble Court in **Kanaran v. Additional District Magistrate** reported in [ **2013 (3) KLT SN 64 (C.No.68)]** . c) to call for all records leading to the issuance of Exhibit P6 by the 4[th] respondent to find that sanction for providing of High Tension (HT) Electric Supply to the 7[th] respondent is not from the premises of the petitioner. d) to issue a writ of mandamus directing respondents 2 to 5 and their associates to abstain from initiating any steps/ proceedings inside the property of the petitioner especially with regard to the installation of an add-on RMU in the property of the petitioner for facilitating the HT power supply to the 7[th] respondent.” 3. W.A.No.1563 of 2023 is one filed by the 4[th] respondent in W.P.(C)No.13879 of 2022, who is the proprietor of Biverah Hotel and Suites, Kumarapuram. That writ petition was one filed by the 7[th] respondent in W.P.(C)No.14176 of 2022, seeking the following reliefs; 7 W.A.Nos.930 of 2022 and 1563 of 2023 “(i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to provide adequate and sufficient police protection to the petitioner and his family members while implementing Ext.P1 order dated 06.04.2022 from 4[th] respondent and his men; (ii) issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to take appropriate action on the complaints and incidents of criminal acts committed by 4[th] respondent.” 4. In W.P.(C)No.14176 of 2022, the learned Standing Counsel for the Kerala State Electricity Board Ltd. filed a counter affidavit dated 07.07.2022, opposing the reliefs sought for in this writ petition, producing therewith Ext.R2(a) document. 5. By a common judgment dated 12.07.2022, the learned Single Judge dismissed W.P.(C)No.14176 of 2022 declining interference on Ext.P10 order dated 06.04.2022 and allowed W.P.(C)No.13879 of 2022, by directing the police to provide assistance to the Kerala State Electricity Board Ltd. for tapping the existing RMU through the add-on RMU installed at the premises of the writ petitioner in W.P.(C)No.14176 of 2022 for providing electric connection to the premises of the petitioner in W.P.(C)No.13879 of 2022. The reasoning of the learned Single Judge, as contained in paragraph 7 of the common judgment reads thus; 8 W.A.Nos.930 of 2022 and 1563 of 2023 “7. I have heard the learned counsel for the parties and appraised the paper book. It would be expedient to extract Regulation 24(2) of the Kerala Electricity Supply Code, 2014. 'the licensee may use the service line and other equipment of the consumer, if the supply to the consumer who has paid for such line and apparatus is not affected adversely.' From the perusal of the same, it is evident that the licensee is empowered to use the service line from the equipment of the consumer. Agreement dated 23.3.2011, R2(a) entered into between the petitioner and the KSEBL empowered the electricity board to use the service line to provide an electric connection to the premises of the 7[th] respondent which is located on the same road and a distance of 170 m. No harm has been caused to the premises of the petitioner or to the existing RMU as the existing RMU will be added on with another RMU. Respondent Board has proposed the underground cable system with RMU as switching devices by replacing all 11 KV overhead lines and structure in the city area and for providing the connection to the apartment of the 7[th] respondent. It is necessary for the electricity board to tap the HT supply to the existing RMU as the electricity board did not find it feasible to cut the main 11 KV underground cable. Once the petitioner had as per clause 16 of the agreement surrendered to the electricity board, free of cost the area for installation of the RMU, cannot permitted to raise the objection for providing electric connection in view of the provisions of Regulation 24(2). The order of the ADM which in my view has been passed on consideration 9 W.A.Nos.930 of 2022 and 1563 of 2023 of the contentions of the rival parties including that of the petitioner, noticing that the existing RMU in the public pathway was causing hindrance to the pedestrians and therefore it was necessary for shifting the RMU to a more suitable place. Since the existing RMU is available at a distance of 170 m from the apartment of the consumer the cutting of the main feeder can be easily avoided. The agreement does not empower the petitioner to urge and state that the RMU unit installed in the property is solely for their own purpose as they incurred the cost. Petitioner has attempted to interdict the compliance and execution of the order of the ADM despite having been called by the police. It is in that background the beneficiary has filed the writ petition for providing police assistance. I am of the view that the request of the 7[th] respondent, who is the petitioner in the W.P.(C)No.13879 of 2022, is most fair and justified. For the reasons aforementioned, the order of the ADM does not suffer from any illegality or fallacy much less repugnancy, the same is upheld. W.P.(C) No.14176 of 2022 is accordingly dismissed. W.P.(C)No. 13879 of 2022 is allowed by issuing directions to the police for providing assistance to the officials of the KSEBL for tapping the existing RMU through the Add-on RMU installed in the premises of the petitioner for providing electric connection to the premises of the 7[th] respondent, forthwith.” 6. On 21.07.2022, when W.A.No.930 of 2022 came up for consideration, this Court granted an interim stay of Ext.P10 order till 25.07.2022. The said order was extended until further orders on 14.10.2022. On 15.09.2023, when W.A.No.1563 of 10 W.A.Nos.930 of 2022 and 1563 of 2023 2023 came up for consideration, C.M.Appl.No.1 of 2023 was allowed by condoning the delay of 391 days in filing that appeal. 7. Along with W.A.No.930 of 2022, the appellant has filed I.A.No.1 of 2022, to accept Annexures A1 and A2 as additional documents. Thereafter, the appellant filed I.A.No.2 of 2022 seeking an order to accept Annexure A3 photographs. Respondents 2 to 6 have filed I.A.No.3 of 2022, seeking and order to accept Exts.R2(b) and R2(c) as additional documents. 8. Heard the learned counsel for the appellant in both the writ appeals, the learned Senior Government Pleader, the learned Standing Counsel for Kerala State Electricity Board Ltd. and the learned counsel for the party respondent. 9. The issue that requires consideration in these writ appeals is as to whether any interference is warranted on the impugned common judgment of the learned Single Judge, whereby W.P.(C)No.14176 of 2022 filed by the appellant stands dismissed and W.P.(C) No.13879 of 2022 filed by the 7[th] respondent in W.P.(C)No.14176 of 2022 stands allowed for the reasons stated therein. 10. During the course of arguments, the learned counsel for the appellants has placed reliance on various provisions under the Kerala Electricity Supply Code, 2005 and the Kerala 11 W.A.Nos.930 of 2022 and 1563 of 2023 Electricity Supply Code, 2014. The learned Standing Counsel for Kerala State Electricity Board Ltd. placed reliance on a Board order No.BO(FB)(Genl)No.2024/2011(DPCII/AE/T&C of Supply 02/2009/ 2011) dated 18.08.2011. The clarifications in that Board order, to additional guidelines for effecting service connections, were issued by the Board based on the recommendations of the Distribution Advisory Committee. 11. In the aforesaid Board order dated 18.08.2011, it is stated that the Board, vide Board order BO(FM)No.1325/2007 (DPC II/APDRP-6/2006-07/07-08) dated 11.06.2007 ordered that all prospective HT consumers or consumers requiring installation of transformers for availing supply, within the APDRP scheme area shall be allowed to tap HT supply only through Ring Main Units. It was ordered that if RMU stations are not available within a distance of 200m, then connection can be effected by tapping of HT supply after installing an extensible CTC Ring Main Unit and if RMU station is available within a distance of 200m, supply can be tapped from the King Main Units station using an - ’ extensible ‘Add on type RMU module. In the Board order dated 18.08.2011, it was noted that even with the above direction, there is no uniformity in the field. Therefore, the Distribution Advisory Committee suggested that Board shall issue additional 12 W.A.Nos.930 of 2022 and 1563 of 2023 clarification in this regard. The Board after considering the issues in detail ordered/clarified the additional guidelines for Service Connections, as stated in paragraphs (1) to (8.2) in the Board order dated 18.08.2011. Paragraph (1) of the order dated 18.08.2011 reads thus; - “(1) In the case of all prospective HT consumers or consumers requiring installation of transformers for availing supply, within the APDRP scheme area: - (i) If a new UG feeder is to be laid from the substation, provision for isolation with earthing facility shall be provided at the feeder outlet at substation end. - (ii) If supply is to be tapped from an existing feeder, - - extensible type Ring Main Circuit (RMU)/add on unit shall be provided at the tapping point. Provision for extending power in future shall not be included in the estimate of the present applicant. - (iii) Whenever supply is extended further from the same feeder, the additionally required RMU along with accessories are to be provided at the cost of that consumer. - (iv) To the extent possible, supply must be tapped from the nearest RMU. - (v) If supply to a prospective HT consumers or consumers requiring installation of transformers is to be extended from the existing structure where an extensible RMU is provided/already proposed to be installed under RAPDRP scheme, only cost of - - extensible add on module need to be realised from the intending applicant. 13 W.A.Nos.930 of 2022 and 1563 of 2023 - (vi) If an RMU is not available at the consumer premise, there should be provision for isolating supply to the premise.” 12. The specific stand taken in the counter affidavit dated 07.07.2022 filed by respondents 2 to 6 in W.P.(C)No.14176 of 2022 was that, as the power requirement to the apartment of the 7[th] respondent could not be met through the LT distribution network, the 11KV network has to be extended to that premises for meeting the requirement. After thorough investigation and evaluation the Board found that the best route for tapping power was from 11KV Kumarapuram feeder through the RMU installed in the premises of the appellant, which is the nearest tapping point at a distance of 170m from the apartment of the 7[th] respondent. For that purpose, an ‘Add-on’ CTC RMU has to be added to the existing CTC RMU in the premises of the appellant’s hotel. Thereafter, 115m of 11KV underground cable has to be drawn from the RMU to the entrance of the apartment of the 7[th] respondent. Then, the underground cable has to be extended up to a distance of 55m up to the transformer that has to be installed by the 7[th] respondent. In the counter affidavit, it is pointed out that as per clause (16) of Ext.R2(a) agreement dated 23.03.2011 executed between the appellant and the 5[th] respondent Assistant Executive Engineer, the area in which CTC 14 W.A.Nos.930 of 2022 and 1563 of 2023 RMU has been erected in the appellant’s hotel has already been surrendered to Kerala State Electricity Board Ltd. As per Regulation 24(2) of the Kerala Electricity Supply Code, 2014, the licensee may use the service line and other equipment of a consumer, if the supply to the consumer who has paid for such line and apparatus is not adversely affected. For providing reliable supply of electricity, the Board has proposed underground cable system with RMU as switching devices, by replacing all 11KV overhead lines and structures in city areas. 13. Relying on the proviso to Regulation 24(2), the learned counsel for the appellant would contend that a ‘Add-on’ CTC RMU cannot be added to the existing CTC RMU in the premises of the appellant’s hotel. As per the proviso to Regulation 24(2), the service line and other equipment of a consumer with a dedicated feeder shall not be used to supply power to another consumer. When the Board orders dated 11.06.2007 and 18.08.2011, permits tapping of supply from the nearest RMU using ‘Add-on’ type RMU module, we find no merit in the contention advanced by the learned counsel for the appellant, relying on the proviso to Regulation 24(2). 14. By Ext.P10 order in W.P.(C)No.14176 of 2022, the 1[st] respondent Additional District Magistrate, in exercise of his 15 W.A.Nos.930 of 2022 and 1563 of 2023 powers under Section 16(1) read with Section 10(d) of the Indian Telegraph Act, 1885 and Section 164 of the Electricity Act, 2003, ordered to provide electricity connection to the apartment of the 7[th] respondent, through the recommended route suggested by the 5[th] respondent Assistant Executive Engineer. As held by this Court in **Indu Chandran and other v.** ## **Kerala State Electricity Board and others [2017 (3) KHC** **746]** a judicial review on the decision of the District Magistrate taken under Section 16(1) of the Indian Telegraph Act, 1885, must be resorted to only in accordance with well settled parameters. The High Court would be justified in interfering with discretion exercised by the District Magistrate only in cases of established illegality, irrationality, procedural impropriety or where the decision is found to be unreasonable in the Wednesbury sense or vitiated by malafide, either factual or legal. 15. After considering the rival contentions, the learned Single Judge, for the reasons stated in paragraph 7 of the impugned judgment declined interference in the order dated 06.04.2022 of the Additional District Magistrate. The reasoning of the learned Single Judge for declining interference on that order is neither perverse nor patently illegal, warranting 16 W.A.Nos.930 of 2022 and 1563 of 2023 interference in W.A.No.930 of 2022. In that view of the matter, the direction contained in the impugned judgment directing the police to provide assistance to the officials of the Kerala State Electricity Board Ltd. for tapping the existing RMU in the premises of the appellant’s hotel through ‘Add-on’ RMU, for providing electric connection to the apartment of the 7[th] respondent cannot also be said to be arbitrary or illegal, warranting interference in W.A.No.1563 of 2023. In the result, W.A.Nos.930 of 2022 and 1563 of 2023 fails and accordingly dismissed. **Sd/-** **Sd/-** **G. GIRISH, JUDGE** vgd 17 W.A.Nos.930 of 2022 and 1563 of 2023 ## **`APPENDIX OF WA 930/2022`** ## **`PETITIONER’S ANNEXURES`** ``` ANNEXURE A1THE TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE WIFE OF THE APPELLANT. ANNEXURE A2THE TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE APPELLANT ``` ## **`RESPONDENTS’ EXHIBITS`** ``` EXHIBIT R2(B)THE TRUE COPY OF THE SKETCH OF PROPOSAL FOR DRAWAL OF THE UG CABLE FROM THE RMU IN THE APPELLANTS PREMISES TO THE 7TH RESPONDENT'S PROPERTY DATED NIL EXHIBIT R2(C)THE TRUE COPY OF THE PHOTOGRAPHS OF THE RMU UNIT INSTALLED AT THE APPELLANT'S PREMISES ALONG WITH THE FOUNDATION PLAN DATED NIL ```