IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 1563 of 2011(U) -------------------------------------- PETITIONER(S): ------------------------- P.A.MUHAMMADALI , AGED 62 YEARS, S/O. ABDUL RAHMAN, PREINGATTU HOUSE, OONNUKAL P.O,KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.PRAMOD KOCHUTHOMMEN.E. RESPONDENT(S): --------------------------- 1. ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KOTHAMANGALAM. PIN- 686 691. 2. THE KERALA STATE ELECTRICITY BOARD, REP BY ITS SECRETARY, VYDUTHI BHAVAN THIRUVANANTHAPURAM.PIN- 695 001 3. GEORGE KURUVILA, AGED 46, S/O.KURUVILA, 36/3046 B, ASRA-75,AZAD ROAD KALOOR,KOCHI .PIN- 682 317. R1 & R2 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI.K.M.SATHYANATHA MENON,SC,KSEB R3 BY ADV.SRI.JOHN NUMPELI (JUNIOR) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.1563/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE RESIDENCE CERTIFICATE DATED 15/6/2009 ISSUED FOR THE PURPOSE OF AVAILING ELECTRIC CONNECTION BY THE SECRETARY, KAVALANGAD GRAMA PANCHAYATH. P2 COPY OF THE RESIDENCE CERTIFICATE DATED 30/6/2009 ISSUED BY THE VILLAGE OFFICER, KUTTAMANGALAM. P3 COPY OF THE JUDGEMENT DATED 10/06/2010 IN WP(C)NO.9431 OF 2010. P4 COPY OF THE COUNTER CLAIM RAISED BY THE 3RD RESPONDENT IN O.S.313 OF 2010 BEFORE THE MUNSIFFS COURT, MUVATTUPUZHA DATED 17/10/2010. P5 COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 28/7/2010 IN OS NO.313 OF 2010 BEFORE THE MUNSIFFS COURT, MUVATTUPUZHA. P6 COPY OF THE PLAINT IN OS NO.485 OF 2010 BEFORE THE MUNSIFFS COURT, MUVATTUPUZHA. P7 COPY OF THE NOTICE ISSUED IN O.A.100/2010 BEFORE THE LAND TRIBUNAL, PERUMBAVOOR. P8 COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT IN ORDER NO.GBI/ESD/KLM/2010-11/COMPLAINTS HEARING/12/KOTHAMANGALM DATED 3/1/2011. P9 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 12/1/2011. P10 COPY OF THE REPRESENTATION DATED 3/12/2010 BY THE PETITIONER TO THE 1ST RESPONDENT. P11 COPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING THE RECEIPT OF THE REPRESENTATION. P12 COPY OF THE NON-ENCUMBRANCE CERTIFICATE RESPONDENT'S EXHIBITS: R3(A) COPY OF THE SALE DEED NO.7305 OF 1996 OF SRO KOTHAMANGALAM. R3(B) COPY OF THE WRIT PETITION (C)NO.9431/10 FILED BY THE PETITIONER BEFORE THIS HONOURABLE COURT DATED 19/3/2010. R3(C) COPY OF THE PLAINT IN OS 313/20 OF THE MUNSIFF'S COURT MUVATTUPUZHA 2/- -2- WP(C)NO.1563/2011 R3(D) COPY OF THE PROCEEDINGS BEFORE THE ASST.EXECUTIVE ENGINEER DATED 24/7/10. R3(E) COPY OF THE PHOTOGRAPH (4NOS) R3(F) COPY OF THE ORDER IN IA 1934/10 IN O.S.313/10 OF THE MUNSIFF'S COURT MUVATTUPUZHA. R3(G) COPY OF THE O.A.100/10 FILED BY THE PETITIONER BEFORE THE LAND TRIBUNAL THRIPPUNITHURA. R3(H) COPY OF THE STAY PETITION IN OS 485/10 FILED BY THE 3RD RESPONDENT BEFORE THE MUNSIFF COURT, MUVATTUPUZHA DATED 20/12/2010. R3(I) COPY OF THE PLAINT IN OS NO.207/88 OF THE HONOURABLE MUNSIFF COURT, MUVATTUPUZHA. R3(J) COPY OF THE WRITTEN STATEMENT IN OS NO.207/88 DATED 21/7/1988. /TRUE COPY/ P.S.TO.JUDGE sts P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.1563 of 2011 ----------------------------------------- Dated this the 19th day of September, 2011 JUDGMENT Ext.P8 order passed by the first respondent Assistant Executive Engineer on 3.1.2011 directing disconnection and dismantling of the electricity supply obtained by the petitioner to a residential building and Ext.P9 letter dated 12.1.2011 sent by the Assistant Engineer to the petitioner informing him that in view of Ext.P8 order, the electricity supply will be disconnected without further notice are under challenge in this writ petition. The brief facts of the case are as follows. 2. The petitioner, who was an employee in a plantation belonging to the third respondent, was permitted to reside in a building situate therein. The third respondent's father late Kuruvilla purchased the property from its previous owner in the year 1966. The third respondent's father had during his lifetime conveyed a portion of the property to his daughter, the third respondent's sister, as per sale deed No.700/1975, but later, in the year 1997 the third respondent's sister transferred the W.P(C).No.1563 of 2011 -:2:- property to the third respondent. The entire property having an extent of approximately 4 acres thus belongs to the third respondent. 3. The petitioner submitted an application to the first respondent herein for a fresh electricity connection to the building wherein he was residing. Along with that application he produced Ext.P1 certificate issued by the Secretary, Kavalangad Grama Panchayat to the effect that he is residing in the building bearing door No.IV/51 (old No.III/509), Ext.P2 residence certificate issued by the Village Officer, Kuttamangalam Village, to the effect that he is a resident of that village and a copy of the electoral identity card issued on 27.9.1997 wherein the address given was a different address, namely, 3/283, Peringattu, Kavalangad. The petitioner had also produced along with the application an indemnity bond in favour of the Kerala State Electricity Board and a letter from Sri.A.M.Seethy to the effect that he has no objection to the line being drawn across his property for the purpose of giving electricity connection to premises bearing door No.KGP IV/674. In the application given by the petitioner for electricity connection, the connection was sought to premises bearing door W.P(C).No.1563 of 2011 -:3:- No.IV/51. In Ext.P1 residence certificate issued by the Secretary, Kavalangad Grama Panchayat it is stated that the petitioner is residing in a building bearing door No.IV/51. The same door number is given in Ext.P2 residence certificate issued by the Village Officer, Kuttamangalam Village. However, in the electoral identity card produced by the petitioner along with the application for electricity connection, the address given is 3/283, Peringattu, Kavalangad. In the copy of the ration card, which the petitioner had produced along with the application for electricity connection, the address given is 3/509, Peringattu, Oonnukal P.O. The door number of the premises given in the indemnity bond executed by the petitioner is IV/51, while in the property crossing agreement, permission is given for the purpose of drawing electricity line to premises bearing door No.KGP IV/674. 4. After the electricity connection was given, on coming to know of it, the third respondent caused a notice dated 18.2.2010 to be issued to the Assistant Executive Engineer. The Assistant Executive Engineer in turn issued a show cause notice dated 3.3.2010 calling upon the petitioner to show cause within seven days as to why the electricity connection should not be W.P(C).No.1563 of 2011 -:4:- disconnected and dismantled. Upon receipt of the said show cause notice, the petitioner submitted a reply dated 11.3.2010 wherein he stated that he has been residing in the said building for the past 45 years, that he had effected repairs to the building in the year 2009 and that for drawing electricity connection to the said building, the consent of no one else is required. He also claimed that he is residing in a parcel of land, approximately 30 cents in extent, situate in Sy.No.732/1/2 of Kothamangalam Taluk. He also stated in the reply that his service was terminated on 11.2.2010 without any benefit being paid and that as a result of the dispute raised by him, the third respondent has taken steps to get the electricity supply disconnected. The petitioner thereafter filed W.P.(C)No.9431 of 2010 in this Court challenging the show cause notice dated 3.3.2010. By Ext.P3 judgment delivered on 10.6.2010 after hearing the petitioner and the third respondent, this Court disposed of the said writ petition with a direction to the first respondent to take a final decision in the matter within one month from the date of receipt of a copy of the judgment, after hearing both sides. This Court also directed that till such time, the electricity supply shall not be disconnected. W.P(C).No.1563 of 2011 -:5:- 5. Shortly thereafter, on 17.7.2010, the petitioner filed O.S.No.313 of 2010 in the Court of the Munsiff of Muvattupuzha for a permanent prohibitory injunction restraining the third respondent, his men and agents from trespassing into the plaint schedule property or from committing any acts of waste or nuisance therein or from interfering with his possession and enjoyment thereof. The suit property was described as a parcel of land, 30 cents in extent, situated in Sy.No.732/55/257 and 732/1/2 of Kuttamangalam Village, Kothamangalam Taluk, Ernakulam District, bounded on all four sides by the property of the third respondent. In that suit, he filed an application, I.A.No.1934 of 2010 under Order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil Procedure, for a temporary injunction restraining the third respondent from trespassing into the plaint schedule property or from interfering with his possession and enjoyment of the plaint schedule property till the disposal of the suit. The third respondent entered appearance and filed a counter affidavit. After hearing the learned counsel on both sides, the Court of the Munsiff vacated the ad interim order of injunction and dismissed the application by Ext.R3(f) order dated W.P(C).No.1563 of 2011 -:6:- 6.9.2010. The third respondent has filed a counter claim in the suit (Ext.P4) for a decree allowing him to recover possession of the building described in the schedule to the counter claim from the petitioner. The third respondent has also prayed for a permanent prohibitory injunction restraining the petitioner or his men from trespassing into the plaint schedule property or from committing any waste or damage therein or from obstructing the peaceful enjoyment of the property or from taking usufructs from the property, subject to the relief of recovery of possession as regards the counter claim schedule property. Shortly thereafter, the petitioner withdrew that suit and thereafter filed another suit, O.S.No.485 of 2010 in the Court of the Munsiff of Muvattupuzha to restrain the third respondent and his men or agents from illegally evicting him and his family members from the suit property. Here again, though the same property was the subject matter of the suit, the eastern and southern boundaries were described differently. The said suit is even now pending. It was in such circumstances that the impugned order happened to be passed on 3.1.2011, directing disconnection and dismantling of the electricity supply. The main contention raised by the W.P(C).No.1563 of 2011 -:7:- petitioner is that as he is in lawful possession of the building, nobody's consent was required to obtain electricity connection, that he has filed an application to purchase the kudikidappu right over the building and as the kudikidappukaran having lawful possession he has the right to enjoy the property. 6. Respondents 1 and 2 have filed a counter affidavit dated 24.8.2011 wherein it is stated that Ext.P8 order was issued after hearing both sides on 24.7.2010 and that the petitioner obtained the electricity connection by suppressing material facts. It is also stated that for providing electricity connection to the building wherein the petitioner is residing, the consent of the owner of the property through which line was drawn was required, but was not obtained and produced. The third respondent has filed a counter affidavit dated 31.1.2011 and an additional counter affidavit dated 2.2.2011. The main contention raised by the third respondent is that the petitioner is not in lawful possession of the premises, that the petitioner is not the owner of the property through which the overhead line and weather proof line have been drawn and the third respondent has not consented to the electricity line being drawn and therefore on that short ground itself the electricity W.P(C).No.1563 of 2011 -:8:- connection is liable to be disconnected and dismantled. It is also contended that the petitioner is the owner of 13.75 cents of land in Sy.No.732/1A/191/32/233 and 732/1A/162/32/(1)/141 of Kuttamangalam Village, Kothamangalam Taluk, Ernakulam district, which he obtained as per Ext.R3(a) sale deed dated 24.10.1996 and therefore, as a person in possession of more than ten cents of land, the petitioner cannot contend for the position that he is a kudikidappukaran in respect of the disputed premises. The third respondent has also stated that the contention raised by the petitioner in the earlier writ petition was that he has perfected title by adverse possession and limitation and now the claim is that he is a kudikidappukaran of the building and 30 cents of property, and therefore the claim made by the petitioner over the property is untenable. Relying on Ext.R3(g) application filed by the petitioner for purchase of the kudikidappu right, the third respondent has contended that the application is for purchase of kudikidappu right over 30 cents of land and going by the provisions of the Kerala Land Reforms Act the petitioner could not have applied for the purchase of kudikidappu right over a holding more than 10 cents in extent. The third respondent has also W.P(C).No.1563 of 2011 -:9:- contended that the petitioner obtained the property described in Ext.R3(a) sale deed when the suit filed by the former owner of that land, O.S.No.207 of 1988 was settled out of court and that in the written statement filed by the petitioner's wife who was the 34th defendant in that suit, the petitioner as well as his wife had contended that they are residing in that parcel of land for the past more than three decades. The third respondent contends that in such circumstances the claim of the petitioner that he is entitled to purchase the kudikidappu right over the disputed building is not sustainable in law. 7. I heard Sri.Pramod Kochuthommen, learned counsel appearing for the petitioner, Sri.K.M.Sathyanatha Menon, learned standing counsel appearing for the Kerala State Electricity Board and Sri.John Numpeli, learned counsel appearing for the third respondent. I have also gone through the pleadings and the materials on record. Sri.Pramod Kochuthommen, learned counsel appearing for the petitioner contended relying on the definition of the term “consumer” occurring in Regulation 2(m) of the Kerala Electricity Supply Code, 2005 framed by the Kerala State Electricity Regulatory Commission, that any person who is W.P(C).No.1563 of 2011 -:10:- supplied with electricity for his own use by a Licensee or the Government or by other person engaged in the business of supplying electricity to the public under the Act or any other law for the time being in force is a consumer and the term consumer includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a Licensee, the Government or such other person, as the case may be. Relying on Regulation 5 of the Kerala Electricity Supply Code, 2005 (hereinafter referred to as the Supply Code for short) and Regulation 14 of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 (hereinafter referred to as the Conditions of Supply for short) the learned counsel contended that as the consent of the owner of the building (third respondent) was not forthcoming, the petitioner had executed an indemnity bond in Form No.5 indemnifying the Board against claims by the owner of the building and that as the occupier of the premises he was rightly given electricity connection. Per contra, Sri.K.M.Sathyanatha Menon, learned standing counsel appearing for the Board and Sri.John Numpeli, learned counsel appearing for the third respondent, contended relying on the application for W.P(C).No.1563 of 2011 -:11:- supply of electricity connection and the contents of the indemnity bond that the petitioner had not held himself out as a tenant or occupier of the building and that he had applied for electricity connection as the owner of the building. The learned counsel for the respondents also contended that the petitioner had not obtained the consent of the third respondent for the purpose of drawing the overhead and weather proof lines and that as the line passes through the property of the third respondent his consent ought to have been obtained before the overhead line/weather proof line was drawn. 8. Pursuant to the directions issued by this Court, the learned standing counsel for the Kerala State Electricity Board made available the application submitted by the petitioner for electricity connection and the accompanying papers. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the application form and the accompanying papers submitted by the petitioner, which were made available by the learned standing counsel for the Board. Column 20 of the application requires the applicant to state whether he is the owner of the building or the tenant. In the W.P(C).No.1563 of 2011 -:12:- application form submitted by the petitioner he had not stated whether he is the owner of the building or the tenant. The door number of the building to which electricity connection was sought is given as door No.IV/51 of Kuttamangalam Village. The electricity connection was applied for under the “Own Your Electric Connection Scheme” after remitting the cost for providing electricity connection. Along with the application the petitioner had produced Ext.P1 residence certificate to the effect that he is a resident of building bearing door No.IV/51 of Kavalangad Grama Panchayat. He had also produced a property crossing agreement purporting to be one executed by Sri.A.M.Seethy. In the agreement dated nil, Sri.A.M.Seethy had stated that he is giving consent to draw electricity line through his property to the premises of House No.KGP IV/674 by the Kerala State Electricity Board. Though the name of the applicant is required to be stated in the property crossing agreement, it is not given, but the petitioner has signed as the consumer. It is evident from the property crossing agreement that the said agreement is not in respect of the building to which electricity supply was sought, namely IV/51. Therefore, it is evident that electricity line was W.P(C).No.1563 of 2011 -:13:- drawn to the premises in the occupation of the petitioner without the consent of the property owner through whose lands the overhead line and the weather proof line were drawn. 9. In the indemnity bond executed by the petitioner, he had described himself as the person in possession. He had not stated whether he is the occupier of the building owned by the respondent under lease/licence or permission. The indemnity bond is also not in Form No.5 prescribed as per Regulation 14(4) of the Conditions of Supply. In the indemnity bond the person executing the bond has to state whether he is in occupation of the building under a lease arrangement or a licence arrangement or with the permission of the owner of the building. Such an indemnity bond is required only where the applicant is not in a position to obtain the consent of the owner of the building for the purpose of obtaining electricity connection. In the instant case a mere look at the indemnity bond will show that it is not one in the prescribed form. In other words, the petitioner had not, at any point of time, informed the Board that he is in possession of the building with the permission of the owner, the third respondent herein. The petitioner is admittedly not a lessee or the licensee of W.P(C).No.1563 of 2011 -:14:- the premises. He was admittedly residing in the building only in his capacity as an employee of the third respondent. Therefore, it is crystal clear that such occupation was with the permission of the employer, the third respondent. As a person in permissive occupation, the petitioner does not have the right to claim kudikidappu right especially in view of the fact that he was already holding 13.75 cents of land in the same Taluk. In any case as the land is situated in a Panchayat area, the petitioner could have applied for purchase of kudikidappu right only in respect of 10 cents of land. The property in question is approximately 30 cents of land with a building. It was evidently because of these facts that when the petitioner executed the indemnity bond he merely stated that he is the occupant, but did not state that he is an occupant under a lease arrangement or a licence arrangement or with permission of the owner. It has therefore to be necessarily held that the application submitted by the petitioner for electricity connection was not in order and could not have been acted upon. It is evident from the conduct of the petitioner that his intention is to grab the property belonging to his employer by putting forward a claim that he is a kudikidappukaran entitled to purchase 30 W.P(C).No.1563 of 2011 -:15:- cents of land under the provisions of the Kerala Land Reforms Act. 10. In my opinion, the claim of the petitioner that he is a kudikidappukaran and therefore he is entitled to get electricity connection is not prima facie sustainable. Even assuming that the petitioner is entitled to maintain an application for purchase of the kudikidappu right, in view of the provisions contained in section 80A(3) of the Kerala Land Reforms Act he can purchase only three cents in a city or major Municipality, or five cents in a Municipality or ten cents in any Panchayat area or township. Therefore, the claim made by the petitioner that he is entitled to purchase 30 cents of land is plainly untenable. That apart, the petitioner cannot also, in my opinion, claim that he is a kudikidappukaran, entitled to purchase the holding. The petitioner was admittedly an employee of the third respondent. Explanation VI to section 2(25) of the Kerala Land Reforms Act stipulates that a person occupying any hut belonging to the owner of a plantation and situate in the plantation shall not be deemed to be a kudikidappukaran if such person was permitted to occupy that hut in connection with his employment in the plantation unless he was immediately before the commencement of the Kerala Land Reforms Act, entitled to W.P(C).No.1563 of 2011 -:16:- the rights of a kudikidappukaran or the holder of a protected ulkudi or kudikidappu under any law then in force; or he would have been entitled to the rights of a kudikidappukaran if the area in which that hut is situate had not been converted into a plantation subsequent to his occupation of that hut. In Ext.R3(g), the application for purchase of kudikidappu right, the petitioner has stated that he was permitted by Sri.Kuruvilla, the third respondent's father to occupy the building on 16.7.1960. The third respondent has stated in categorical terms that his father purchased the building and the appurtenant land only in the year 1966. The petitioner has not denied the said fact. It is evident from the materials on record that the claim of the petitioner that he was permitted by the third respondent's father to occupy the hut on 16.7.1960 cannot be believed. That apart, as he was the owner of a parcel of land 13.75 cents in extent in a panchayat area, after the commencement of the Kerala Land Reforms Act, he does not satisfy the definition of the term “kudikidappukaran” occurring in section 2(25) of the Act. Therefore, the mere fact that at a later point of time he sold the land which he obtained as per Ext.R3(a) sale deed is not a reason to hold that with the W.P(C).No.1563 of 2011 -:17:- execution of the sale deed he became a landless person and was therefore entitled to purchase ten cents of land in a Panchayat area. Even on the petitioner's own showing, he was in possession of 13.75 cents of land in the year 1996. I am therefore, of the opinion that the petitioner is not entitled to any relief in the writ petition. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.1563 of 2011 ---------------------------- JUDGMENT 19th September, 2011