IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 659 of 2010(F) ------------------------ PETITIONER: --------------- RADHAKRISHNAN,AGED 52,S/O.NARAYANAPILLAI KONOTHU HOUSE,MULLAPUZHACHAL KARA,EENANELLOOR VILLAGE, NOW RESIDING AT KONOTHU HOUSE, CHATHAMMAL KARA,THODUPUZHA VILLAGE. BY ADV. SRI.P.CHANDY JOSEPH RESPONDENTS: --------------- 1. MATHEW,AGED ABOUT 39,S/O.DEVASIA, RESIDING AT KALLARACKAL,HOUSE,KUDAYATHOOR KARA, VELLIYAMATTOM VILLAGE,NOW RESIDING AT CHATHANMALA KARA,THODUPUZHA VILLAGE. 2. JOSE DOMINIC,AGED ABOUT 47,S/O.DOMINIC ELAVUNKAL HOUSE,KATTAPPANA KARA,KATTAPPANA VILLAGE NOW RESIDING AT P & T QUARTERS C2 (ELAVUNMKAL) THODUPUZHA KARA IN THODUPUZHA VILLAGE. 3. KERALA STATE ELECTRICITY BOARD REP;BY ASSISTANT ENGINEER,ELECTRICAL SECTION NO.1, THODUPUZHA. *4. THE SECRETARY, THODUPUZHA MUNCIPALITY, THODUPUZHA (Iimpleaded as additional 4th respondent as per order dated 27.1.2010 in IA 1018 of 2010) R1 AND R2 BY ADV. MR. MATHEW JOHN MR. AJESH K. SASI R3 ADV. MR. C.K. KARUNAKARAN , STANDING COUNSEL R4 MR. P.K. SOYUS, STANDING COUNSEL, THODUPUZHA MUNCIPALITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 659 OF 2010 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : THE TRUE PHOTOCOPY OF THE AFREEMENT DATED 05.05.2009 EXECUTED BY THE PETITIONER AND THE RESPONDENTS 1 AND 2. EXT.P2 : THE TRUE PHOTOCOPY OF THE PLAINT IN O.S. 165/2009 BEFORE THE MUNISFF'S COURT, THODUPUZHA EXT.P3 : THE TRUE COPY OF THE INJUNCTION ORDER IN I.A. 587/2009 IN O.S. 165/2009 MUNISFF COURT, THODUPUZHA. EXT.P4 : THE TRUE PHOTOCOPY OF THE RECOMMENDATION DATED 7.10.2009 ISSUED BY THE MUNCIPAL COUNCILOR, WARD NO. V, THODUPUZHA EXT.P5 : THE PHOTOCOPY OF THE BILL ISSUED BY SAJU P.M. W.P. NO. 37541 DATED 16.10.2009 TO THE PETITIONER. EXT.P6 : TRUE PHOTOCOPY OF THE RECEIPT DATED 13.10.09 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P7 : TRUE PHOTOCOPY OF THE RECEIPT DATED 13.10.2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P8 : TRUE PHOTOCOPY OF THE RECIEPT DATED 13.10.2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P9 : TRUE PHOTOCOPY OF THE BILL DATED 22.12.2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P1O : TRUE COPY OF THE RECEIPT DATED 24.12.2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER . EXT.P11 : TRUE PHOTOCOPY OF THE ORDER IN I.A. NO. 473/2009 IN O.S NO. 72/09 BEFORE THE SUB COURT, THODUPUZHA EXT. P12 : TRUE PHOTOCPY OF THE NOTICE DATED 24.12.2009 BEARING NO. D.B. 5/2009/2010/158 DATED 24.12.2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P13 : TRUE PHOTOCOPY OF THE COMPLAINT FILED BY THE SECOND RESPONDENT BEFORE THE CIRCLE INSPECTOR OF POLICE, THODUPUZHA DATED 25.06.2009 EXT.P14 : TRUE PHOTOCOPY OF THE ELECTRICITY BILL DATED 17.2.2010 RESPONDENTS' EXHIBITS : EXHIBITS OF RESPONDENTS 1 AND 2: EXT.R1 (a) : A TRUE COPY OF THE PETITION BY THE RESPONDENTS BEFORE THE K.S.E.B. EXT.R1(B) : A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS. EXHIBITS OF RESPONDENT NO. 3 : ANNEXURE 1 : PHOTOCPY OF THE BOARD ORDER NO. B.O. (FM) (GEN) NO. 2432/2009 DATED 22.9.2009 ANNEXURE II : PHOTOCPY OF THE LETTER DATED 7.12.2009 ISSUED BY THE SECRETARY, THODUPUZHA MUNCIPALITY TO THE 3RD RESPONDENT ANNEXURE III : PHOTOCPY OF THE UNDERTAKING DATED 8.10.2009 OF THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 659 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 09th day of June, 2010 JUDGMENT The petitioner is challenging the highhanded activity of the 3rd respondent for having issued Ext.P12, disconnecting the power supply of the petitioner without any notice and without referring to the very purpose of the Scheme under which the electricity connection was provided. 2. The sequence of events described in the Writ Petition shows that, the petitioner had entered into an agreement with the respondents 1 and 2 for purchase of 8 cents of property along with partly constructed building as borne by Ext.P1 agreement dated 5.5.2009. Since substantial amount was parted with as advance consideration, the petitioner was put in possession of the property and the building and after procuring funds from appropriate sources, the petitioner completed the construction, though the building is yet to be numbered by the concerned local authority i.e additional 4th respondent. 3. While so, there arose a dispute between petitioner and the respondents 1 and 2 with regard to the balance sale consideration to be given, under which circumstances, the respondents 1 and 2 allegedly tried to evict the petitioner from the premises, when petitioner W.P. (C) No. 659 of 2010 : 2 : was constrained to approach the Munsiff's Court, Thodupuzha by filing Ext.P2 plaint along with interlocutory application for temporary injunction. After weighing the balance of convenience, the Munisff's Court granted Ext.P3 temporary injunction restraining the respondents 1 and 2 from disturbing the possession and enjoyment of the petition schedule property by the petitioner, which is stated as still continuing. Simultaneously, the petitioner also approached the Sub Court, Thodupuzha by filing O.S. 72 of 2009, apprehending the steps being pursued by the respondents 1 and 2 to convey the property to strangers and after considering the prayer, the Sub Court granted Ext.P11 interim injunction against the very same respondents. Both the suits are still pending. 4. In the meanwhile, 3rd respondent Board notified a Scheme, whereby the 4th respondent Municipality sought to have electrified all the buildings which have not obtained building numbers or permits. Pursuant to this, the petitioner also submitted an application. Though the construction had been completed, the building number was yet to be assigned by the 4th respondent Municipality. On satisfying the requirements, the electricity connection was provided to the petitioner and he was enjoying the same remitting the amounts due under the periodical bills. It is also stated that the petitioner satisfied the W.P. (C) No. 659 of 2010 : 3 : requirements as specified by the Board. Ext.P5 is the bill issued to the petitioner, with regard to the completion of wiring and after considering the facts and figures the respondent Board provided electric connection . The petitioner was enjoying the benefit of power supply and was residing in the building, satisfying the amounts due under the various bills as borne by Exts. P6 to P10. 5. While so, to the utter shock and surprise to the petitioner, on a fine morning, the 3rd respondent issued Ext.P12 notice dated 24.12.2009, effecting disconnection of the power supply without any notice. This made the petitioner to approach this Court by filing this Writ Petition. 6. The respondent Board has filed a counter affidavit stating that, the course pursued by the Board is perfectly in conformity with the relevant provisions of law; particularly Annexures 1 and 2 Board order and letter issued by the concerned local authority respectively. The respondents 1 and 2 have also filed counter affidavit contending that, the averments raised by the petitioner are not correct or sustainable. The petitioner has filed a reply affidavit rebutting the contents of the counter affidavit filed by the respondents 1 and 2 simultaneously producing some additional documents. W.P. (C) No. 659 of 2010 : 4 : 7. The learned counsel for the petitioner submits that, the contention of the respondents 1 and 2 that the possession of the building was taken over forcefully is not correct and the actual position is very much discernible from paragraph 4 of Ext.P13 complaint preferred by the second respondent before the C.I. Of Police Thodupuzha, wherein it is conceded that, pursuant to Ext.P1 agreement and on accepting the advance sales consideration, the petitioner was very much put in possession of the property. It is also stated that, the action pursued by the Board issuing Ext P12 is not in conformity with the stipulations in the Scheme or the Board orders. 8. The learned standing counsel however submits that, Annexure 1 Board order itself very much enables the third respondent to pursue such exercise. The relevant clause in Annexure 1 Board order is extracted below; i. Accept resolution of the Local bodies instead of building number/approved plan/permit issued by Local bodies, for processing the applications for electrifying houses for those who have not obtained any building number/approved plan/permit from Local bodies where 100 % electrification is being undertaken, considering as a special case. ii. (a) Effect domestic service connection to households in coastal areas where 100 % electrification is going on and not having house number alloted by Local bodies on the basis of ration cards. The applicant shall be the head of the household W.P. (C) No. 659 of 2010 : 5 : who will also produce the voters Identity Card. (b) Obtain an undertaking from the consumer agreeing that the Board is at liberty to disconnect the service, if the Secretary of the Local body requests in writing to disconnect the service. Placing reliance on clause 2 (b), the learned standing counsel appearing for the respondent Board submits that, the Board is very much entitled to disconnect service, if the local authority requires the disconnection. Reference is also made to Annexure 2 letter sent by the 4th respondent Local authority. 9. Going by the contents of Annexure 2 letter, stated as written by the local authority, it was pursuant to the complaint filed by the second respondent [Ext.R1 (a)] alleging that the connection has been obtained by submitting 'forged' or 'false building numbers' and pursuing such other dubious exercise. The Instruction given in Annexure A2 letter written by the Muncipality is that the Board is at liberty to take appropriate action including the disconnection of the power supply, if the same was obtained by submitting any 'false number' to the building by the petitioner or in the name of some others. There is no case for the respondent Board that the petitioner had submitted any false number of the building nor that the petitioner had produced any false completion certificate in any manner. The petitioner contends that the W.P. (C) No. 659 of 2010 : 6 : actual facts and figures alone had been submitted and it was pursuant to this that the electricity connection was given to the petitioner, who was enjoying the benefit of power supply, effecting the periodical payments as mentioned herein before. 10. In the above circumstance, issuance of Ext.P12 order of disconnection, merely by referring to Annexure 1 Board order and placing reliance on Annexure 2 letter issued by the local authority does not appear to be correct of sustainable. Accordingly, Ext.P12 is set aside and the 3rd respondent is directed to give an opportunity of hearing to the petitioner as to the relevant particulars, particularly as to the valid existence of interim orders of injunction, stated as passed by the Munsiff's Court, Thodupuzha and the Sub Court, Thodupuzah, as borne by Exts. P3 and P11 respectively. Such notices shall be issued to the petitioner as well as to the respondents 1 and 2 within 10 days from the date of receipt of a copy of this judgment; on receipt which, the petitioner as well as the other respondents will be at liberty to produce all the requisite particulars along with their explanation before the 3rd respondent within one week thereafter. The final orders shall be passed by the 3rd respondent as to whether any 'false number' of the building was shown or such other false information was furnished by the petitioner while obtaining the electric connection, particularly taking W.P. (C) No. 659 of 2010 : 7 : note of the factual position in the light of the interim orders stated as passed by the Civil Courts enabling the petitioner to continue in the premises. This shall be done as expeditiously as possible at any rate within two months thereafter. The rights and liberties of the parties concerned will depend on the outcome of the cases pending before the Civil Courts, as to the possession and ownership of the premises in question. It is also made clear that, the petitioner will not be entitled to claim any refund from the 3rd respondent/Electricity Board, if the verdicts to be passed by the civil courts go against the petitioner. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd