Andhra Pradesh High Court - Amravati
Sardar Srinivas Seetharam Singh vs The State Of Andhra Pradesh on 12 September, 2023
Bench: R Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Writ Petition No.42149 of 2022
ORDER:
Heard Sri I. Koti Reddy, learned counsel appearing for the petitioner,
Sri Metta Chandra Sekhara Rao, learned counsel appearing for
respondents 3 to 5 and Sri A.S.C. Bose, learned counsel appearing for the
6th respondent.
2. The case of the petitioner is as follows:
The petitioner's grandfather has purchased a house site plot to an
extent of 139.9 sq. yards in a Court auction in O.S.No.459 of 1964, on the
file of the District Munsiff, Visakhapatnam. This property had devolved on
him after the demise of his grandfather and his father. During the life time
of his father, Smt. Basana Adilakshmi and others filed O.S.No.1237 of
2012 on the file of the VI Additional Senior Civil Judge, Visakhapatnam, for
permanent injunction against the father of the petitioner. The trial Judge,
after noticing the fact that Smt. Basana Adilakshmi and others had
admitted, in Ex.A.2-letter dated 06.10.1966, that they were in permissive
possession of the suit schedule property, having obtained the same from
the true owner, i.e., the grandfather of the petitioner, dismissed the suit
on 07.01.2020. Smt. Basana Adilakshmi and others are said to have filed
A.S.No.103 of 2020 before the XII Additional District Judge,
Visakhapatnam, against the order of dismissal and the same is pending.
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3. While the matters stood thus, the 6th respondent, who was
the advocate of Smt. Basana Adilakshmi and others in O.S.No.1237 of
2012, had got two sale deeds executed by Smt. Basana Adilakshmi and
her children, in favour of his mother, on 03.02.2007 and 04.01.2008 and
the same were registered. Thereafter, the 6th respondent got this property
from his mother by way of a deed of gift dated 24.01.2019. The 6th
respondent by submitting these documents, had obtained building
permission from the Municipal Corporation and tried to construct a
building therein.
4. At that stage, the petitioner and his father filed O.S.No.191
of 2021 before the XI Additional District Judge, Visakhapatnam for
cancellation of the settlement deed dated 24.01.2019 and the building
permission dated 01.06.2019 and for other reliefs, and the same is
pending. The trial Court had initially granted an order of status quo
against the construction being carried on by the 6th respondent. However,
this status quo order came to be vacated by the trial Court, as the counsel
of the petitioner, who was suffering from viral fever, did not appear before
the Court.
5. Taking advantage of this situation, the 6th respondent
constructed a building and applied, for grant of electricity connection, to
the third respondent. Upon an objection raised by the petitioner, the
matter was referred to the Consumer Grievances Redressal Forum,
Visakhapatnam. The petitioner's father also approached this Court by way
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of W.P.No.28830 of 2021 for disposal of their objections. This Court
disposed of the writ petition on 17.12.2021 directing the Consumer
Grievances Redressal Forum to take an appropriate decision. Thereafter,
the Consumer Grievances Redressal Forum rejected the claim of the 6th
respondent for grant of service connection on 19.01.2022. The 6 th
respondent, aggrieved by the said decision, had approached the appellate
authority by way of representation No.39 of 2021-2022, which was
dismissed on 23.02.2022.
6. The 6th respondent, after some time, again approached the
3rd respondent for grant of electricity service connection, which was
referred to the 2nd respondent-Consumer Grievances Redressal Forum,
which directed release of service connection, by order dated 20.12.2022,
despite the objections raised by the petitioner. Aggrieved by the said
order, the petitioner has approached this Court by way of the present writ
petition.
7. It is the contention of the petitioner that the Redressal
Forum could not have considered a second application after having
dismissed the first application, and further, such sanction of service
connection is not permissible when there is a civil suit pending in relation
to the title of the property.
8. The 6th respondent would submit that the petitioner has
claimed that the grandfather of the petitioner had purchased the property
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in O.S.No.459 of 1964 while a contrary pleading has been raised in
O.S.No.191 of 2021. In the said suit the petitioner pleaded that the
property was purchased in O.S.No.136 of 1950, and that his grandfather
had obtained physical possession through Court by way of another suit
bearing O.S.No.459 of 1964.
9. The 6th respondent further contends that the grandfather of
the petitioner had never taken possession of the property, and in any
event the judgment debtors in O.S.No.136 of 1950, who were in
continuous possession of the suit schedule property, had sold the property
by way of two separate registered deeds of sale to the mother of the 6 th
respondent, who had transferred the property to the 6th respondent by
way of registered deed of settlement dated 24.01.2019.
10. The 6th respondent also denied that he had got O.S.No.1237
of 2012 filed by the members of the Basana family. The 6 th respondent
also relied upon the pleadings and the reliefs sought in O.S.No.191 of
2021, which include a mandatory injunction for removal of structures
raised by the 6th respondent, which demonstrates that it is the 6th
respondent, who is in possession of the property.
11. The 6th respondent contends that he has already been given
an electricity connection on 26.12.2022 and had also paid the first bill
generated on 03.01.2023 and has been paying thereafter.
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12. The 6th respondent finally contends that Section 43 of the
Electricity Act, 2003 mandates that every distribution licensee is bound to
give an electricity connection to any person in possession of the property
without going into the legality of the person and the disputes relating to
the said person. The 6th respondent would contend that in such
circumstances, the grant of an electricity connection to the 6th respondent
is permissible and legal.
13. The 3rd respondent has filed a counter affidavit, in which it is
stated that the power connection has been given to the 6th respondent as
he is in possession of the property and an indemnity bond has been taken
from the 6th respondent in terms of Clause 5.2.3 of the General Terms and
Conditions of Supply, approved by the A.P. Electricity Regulatory
Commission.
Consideration of the Court:
14. The disputes relating to title are the subject matter of
O.S.No.191 of 2021 before the XI Additional District Judge,
Visakhapatnam, and any observation made by this Court in relation to
such an issue would prejudice the rights of the parties in this writ petition.
However, the issue before this Court cannot be determined, unless there
is a prima facie view taken about the legality of the grant of electricity
connection.
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15. In the circumstances, the observations being made by this
Court shall be restricted for the purpose of this writ petition alone and no
part of the observations would be placed before the trial Court hearing in
O.S.No.191 of 2021 nor shall the trial Court be influenced in any manner
by any of the observations made by this Court.
16. The trial Court, in O.S.No.1237 of 2012, had taken into
account the admission of the members of Basana family that they were in
possession of the property on account of the permission granted by the
grandfather of the petitioner to remain in the property. This would mean
that they are in permissive possession of the property and that they have
no title to the property and have accepted the title of the grandfather of
the petitioner over the property. In view of the above findings of the trial
Court, which have not been disturbed by the appellate Court, as of now,
(A.S.No.103 of 2020 is pending against the order of the trial Court, before
the XII Additional District Judge, Visakhapatnam) it would have to be held
that the transfer of title from the members of Basana family to the mother
of the 6th respondent and consequently to the 6th respondent is fraught
with defects and prima facie there does not appear to be any title with
the 6th respondent.
17. This Court seeks to add that these observations are being
made solely on the basis of the findings of the trial Court in O.S.No.1237
of 2012 and shall not be treated as any direct finding by this Court.
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18. In the aforesaid circumstances, this Court finds it very hard
to accept that the possession of the property by the 6th respondent is
legal. In the event of such an illegal possession, the question that would
arise before this Court is whether Section 43 of the Electricity Act,
mandates that a distribution licence, under the Electricity Act, is bound to
give an electricity connection to even illegal occupants of the land.
19. The other issue, which arises before this court, is whether
the 2nd respondent forum having taken a view in the matter can entertain
another application by the same petitioner.
20. Clause 10.2 of Regulation No.3 0f 2016, bars the 2 nd
respondent forum from going into any questions which are already before
any civil court or where any order has already been passed by any civil
court.
"In cases where proceedings in respect of the same matter
and between the same complainant and the Licensee are
pending before any court, tribunal, arbitrator or any other
authority, or a decree or award or a final order has already
been passed by any such court, tribunal, arbitrator or
authority."
21. In the first round, the 2nd respondent forum, noticing the
pendency of O.S. No. 191 of 2021 and relying on clause 10.2 of
Regulation No.3 0f 2016, had held that the 2nd respondent forum is barred
from going into the issues raised in the application, of the 6th respondent.
In the second round of litigation, the 2nd respondent went into the merits
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of the issue and held that the 6th respondent is entitled to a power
connection. The fact that O.S. No. 191 of 2021 is still pending before the
civil court has been ignored. The only variation in the suit was that the
earlier order of status quo had lapsed. This change does not in any
manner grant any new cause of action for the 6th respondent.
22. In the circumstances, the impugned order of the 2nd
respondent violates the bar under clause 10.2 of regulation No.3 of 2016
and has to be set aside. The question of whether an illegal occupant of a
property can invoke section 43 of the Electricity Act, 2016 need not be
gone into.
23. Accordingly, this writ petition is allowed and the order of the
2nd respondent in C.G.No.159 of 2022, dated 20.12.2022, is set aside.
There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
__________________________
R. RAGHUNANDAN RAO, J.
12th September, 2023
Js.
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W.P.No.42149 of 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Writ Petition No.42149 of 2022
12th September, 2023
Js.
