Kerala High Court
Atlas Celestial Park Apartment ... vs Kerala State Electricity Board ... on 29 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WA.No.1673 OF 2019
AGAINST THE JUDGMENT IN WP(C) 23730/2017 OF HIGH COURT OF
KERALA
APPELLANTS/PETITIONERS:
1 ATLAS CELESTIAL PARK APARTMENT OWNERS
ASSOCIATION,
REG.NO EKM/TC/885/2014,
N.S.S JUNCTION, NAYATHODE P.O.,
NEDUMBASSERRY,
ERNAKULAM, PIN- 683572,
REPRESENTED BY ITS SECRETARY.
2 K.MADHURAJ,
AGED 52 YEARS, S/O.K.ACHUTHAN PILLAI,
FLAT NO.ACP 428,
ATLAS CELESTIAL PARK,
NAYATHODU P.O.,
ANGAMALY,
ERNAKULAM.
BY ADVS.
SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
SRI.ANZIL SALIM
W.A. No.1673/19 & Conn. Cases -:2:-
RESPONDENTS/RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LTD.,
VYDHYUDHIBHAVANAM, PATTOM,
THIRUVANANTHAPURAM, PIN- 695004,
REPRESENTED BY ITS CHAIRMAN.
2 THE DEPUTY CHIEF ENGINEER,
KERALA STATE ELECTRICITY BOARD LTD.,
ELECTRICAL CIRCLE,
PERUMBAVOOR, PIN- 683542.
3 THE ASSISTANT ENGINEER,
KERALA STATE ELECTRICITY BOARD LTD.,
ELECTRICAL SECTION,
KALADY, PIN- 683574.
4 ATLAS GOLD TOWNSHIPS(INDIA) PRIVATE LTD.,
NEAR FEDERAL BANK,
VAPPALLASSERRY P.O.,
ANGAMALY,
ERNAKULAM, PIN- 683572,
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
5 ATLAS CELESTIAL PARK OWNERS ASSOCIATION,
REGISTRATION NO.EKM/TC/70/2015,
NSS JUNCTION,
NEDUMBASSERY,
NAYATHODE P.O., PIN- 683572,
REPRESENTED BY ITS SECRETARY.
6 THE KERALA ELECTRICITY REGULATORY COMMISSION,
KPFC BHAVANAM,
C.V.RAMAN PILLAI ROAD,
VELLAYMBALAM,
THIRUVANANTHAPURAM, PIN- 695101,
REPRESENTED BY ITS SECRETARY.
7 THE CHIEF ELECTRICAL INSPECTOR,
DEPARTMENT OF ELECTRICAL INSPECTORATE,
OFFICE OF CHIEF ELECTRICAL INSPECTOR,
HOUSING BOARD BUILDINGS,
SHANTHI NAGAR,
THIRUVANANTHAPURAM, PIN- 695001.
BY SRI.SUDHEER GANESH KUMAR R., SC, KERALA
STATE ELECTRICITY BOARD LIMITED
W.A. No.1673/19 & Conn. Cases -:3:-
R4 BY ADV. SRI.M.R.ANISON
R5 BY ADV. SRI.K.JAJU BABU (SR.)
R5 BY ADV. SRI.BRIJESH MOHAN
BY SRI.N.K.THANKACHAN, GOVT. PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
21.1.2021, ALONG WITH W.A. Nos.1743/2019, 1817/2019 &
240/2020, THE COURT ON 29.01.2021 DELIVERED THE FOLLOWING:
W.A. No.1673/19 & Conn. Cases -:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WA.No.1743 OF 2019
AGAINST THE JUDGMENT IN WP(C) 21563/2018 OF HIGH COURT OF
KERALA
APPELLANT/4TH RESPONDENT:
ATLAS CELESTIAL PARK APARTMENT OWNERS
ASSOCIATION
REG.NO.EKM/TC/885/2014,
N.S.S.JUNCTION,
NAYATHODE P.O.,
NEDUMBASSERRY,
ERNAKULAM, PIN-683572,
REPRESENTED BY ITS SECRETARY.
BY ADVS.
SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
SRI.ANZIL SALIM
RESPONDENTS/PETITIONERS 1 AND 2 AND RESPONDENTS 1 TO 3 AND
5:
1 N.V.JOSE
NAMBIPARAMBIL HOUSE,
VAZHAKULAM P.O.,
MUVATTUPUZHA,
PIN-686670.
2 T.A.PURUSHOTHAMAN NAIR,
THERATTU HOUSE,
W.A. No.1673/19 & Conn. Cases -:5:-
KIDANGOOR P.O.,
ANGAMALY,
ERNAKULAM,
PIN-683572.
3 ATLAS GOLD TOWNSHIPS (INDIA) PRIVATE LTD.,
NEAR FEDERAL BANK,
VAPPALLASSERRY P.O.,
ANGAMALY,
ERNAKULAM,
PIN-683572,
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
4 KERALA STATE ELECTRICITY BOARD LTD.,
VYDHYUDHIBHAVANAM,
PATTOM,
THIRUVANANTHAPURAM,
PIN-695004,
REPRESENTED BY ITS SECRETARY.
5 ATLAS CELESTIAL PARK OWNERS ASSOCIATION,
REGISTRATION NO.EKM/TC/70/2015,
NSS JUNCTION,
NEDUMBASSERY,
NAYATHODE P.O.,
PIN-683572,
REPRESENTED BY ITS SECRETARY.
6 THE CHIEF ELECTRICAL INSPECTOR,
OFFICE OF THE CHIEF ELECTRICAL INSPECTOR,
HOUSING BOARD BUILDING,
SHANTHI NAGAR,
THIRUVANANTHAPURAM,
PIN-695001.
R3 BY ADV. SRI.M.R.ANISON
R4 BY ADV. SUDHEER GANESH KUMAR R, SC, KSEB
Ltd.
BY SRI.N.K.THANKACHAN, GOVT. PLEADER
R5 BY ADV. SRI.K.JAJU BABU (SR.)
R5 BY ADV. SRI.BRIJESH MOHAN
W.A. No.1673/19 & Conn. Cases -:6:-
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
21.1.2021, ALONG WITH W.A. Nos.1673/2019, 1817/2019 &
240/2020, THE COURT ON 29.01.2021 DELIVERED THE FOLLOWING:
W.A. No.1673/19 & Conn. Cases -:7:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WA.No.1817 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 15370/2017(U) OF HIGH
COURT OF KERALA
APPELLANTS/6TH AND 7TH RESPONDENTS:
1 C.P.MATHEW,
CHELATTU HOUSE,
KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN 686 691
2 K. MADHURAJ,
AGED 52 YEARS, S/O. K.ACHUTHAN PILLAI,
FLAT NO.ACP 428,
ATLAS CELESTIAL PARK,
NAYATHODU P.O.,
ANGAMALY,
ERNAKULAM
BY ADVS.
SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
SRI.ANZIL SALIM
RESPONDENTS/PETITIONERS 1 TO 3 AND RESPONDENTS 1 TO 5 AND
ADDL. 8TH RESPONDENT:
1 ATLAS CELESTIAL PARK OWNERS ASSOCIATION,
REGISTRATION NO. EKM/TC/70/2015
NSS JUNCTION,
NEDUMBASSERY,
W.A. No.1673/19 & Conn. Cases -:8:-
NAYATHODE P.O, PIN 683572
REPRESENTED BY ITS SECRETARY
2 SAJI SEBASTIAN,
PROPRIETOR
ROYAS CASTLE LUXURY AIRPORT LODGE,
ATLAS CELESTIAL PARK APARTMENTS,
NSS JUNCTION,
NEDUMBASSERY,
NAYATHODE P.O., PIN 683572
3 ROY ABRAHAM,
(APARTMENT NO 611)
RESIDING AT IV/261,
ALACKAPPALLY HOUSE,
KODIKULAM DESOM,
THODUPUZHA, PIN 685582
4 THE KERALA ELECTRICITY REGULATORY COMMISSION,
PATTOM,
THIRUVANANTHAPURAM PIN 695 004
REPRESENTED BY ITS SECRETARY
5 KERALA STATE ELECTRICITY BOARD LTD,
VYDYUDHIBHAVANAM, PATTOM,
THIRUVANANTHAPURAM, PIN 695 004
REPRESENTED BY ITS SECRETARY
6 THE DEPUTY CHIEF ENGINEER,
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL CIRCLE, POOPANI ROAD,
PERUMBAVUR,
ERNAKULAM 683542
7 THE ASSISTANT ENGINEER,
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL SECTION,
KALADY PIN 683574
8 ATLAS GOLD TOWNSHIP (INDIA) PRIVATE LTD,
NEAR FEDERAL BANK,
VAPPALLASSERRY P.O, ANGAMALY,
ERNAKULAM, PIN 683572
REPRESENTED ITS EXECUTIVE DIRECTOR
9 GREENOL K.B,
S/O. BALAKRISHNAN,
RESIDING AT GREE NEST,
W.A. No.1673/19 & Conn. Cases -:9:-
KALARIKKAL, KURUMPILAVU,
THRISSUR DISTRICT, PIN 680 564
R1-3 BY ADV. SRI.K.JAJU BABU (SR.),
R1-3 BY BRIJESH MOHAN AND NEETU VINOD
R8 BY ADV. SRI.M.R.ANISON
R9 BY ADV. SRI.B.BILWIN
BY SRI. N.K.THANKACHAN, GOVT. PLEADER
BY ADV. SUDHEER GANESH KUMAR R, SC, KSEB Ltd.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
21.1.2021, ALONG WITH W.A. Nos.1673/2019, 1743/2019 &
240/2020, THE COURT ON 29.01.2021 DELIVERED THE FOLLOWING:
W.A. No.1673/19 & Conn. Cases -:10:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WA.No.240 OF 2020
AGAINST THE JUDGMENT IN WP(C) 15370/2017 OF HIGH COURT OF
KERALA
APPELLANT/ADDITIONAL RESPONDENT No.8:
GREENOL K.B.
S/O. BALAKRISHNAN,
GREE NEST,
KALARIKKAL, KURUMPILAVU,
THRISSUR - 680 564.
BY ADV. SRI.B.BILWIN
RESPONDENTS/RESPONDENTS 2 TO 6:
1 KERALA STATE ELECTRICITY BOARD
VYDHUDHIBHAVAN,
PATTOM,
THIRUVANANTHAPURAM - 695 004,
REPRESENTED BY ITS SECRETARY.
2 THE DEPUTY CHIEF ENGINEER
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL CIRCLE,
POOPANI ROAD,
PERUMBAVOOR,
ERNAKULAM - 683542.
3 THE ASSISTANT ENGINEER
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL SECTION,
KALADY - 683574.
W.A. No.1673/19 & Conn. Cases -:11:-
4 M/S ATLAS GOLD TOWNSHIPS INDIA PVT LTD.
NEAR FEDERAL BANK,
VAPPALLASSERY P.O.,
ANGAMALY,
ERNAKULAM - 683572,
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
5 C.P. MATHEW
CHELATTU HOUSE,
KOTHAMANGALAM - 686691.
6 ATLAS CELESTIAL PARK OWNERS ASSOCIATION
REGISTRATION NO.EKM/TC/70/2015,
NSS JUNCTION, NAYATHODE P.O.,
NEDUMBASSERY,
ERNAKULAM - 683 572,
REPRESENTED BY ITS SECRETARY.
7 SAJI SEBASTAIN
PROPRIETOR,
ROYAL CASTLE LUXURY AIRPORT LODGE,
ATLAS CELESTIAL PARK APARTMENTS,
NSS JUNCTION,
NAYATHODE P.O.,
NEDUMBASSERY,
ERNAKULAM - 683 572.
8 ROY ABRAHAM
IV/261, ALACKAPPALLY,
KODIKULAM DESOM,
THODUPUZHA - 685582.
BY ADV. SUDHEER GANESH KUMAR R, SC, KSEB Ltd.
BY ADV. SRI.K.JAJU BABU (SR.),
BY BRIJESH MOHAN
R4 BY ADV. SRI.M.R.ANISON
BY SRI.N.K.THANKACHAN, GOVT. PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
21.1.2021, ALONG WITH W.A. Nos.1673/2019, 1743/2019, &
1817/2019, THE COURT ON 29.01.2021 DELIVERED THE FOLLOWING:
W.A. No.1673/19 & Conn. Cases -:12:-
JUDGMENT
(W.A. Nos.1673 of 2019, 1743 of 2019,
1817 of 2019 & 240 of 2020)
Dated this the 29th day of January, 2021
Bechu Kurian Thomas, J.
An apartment complex, intended to be heavenly not only in
its name but even in experience for its residents, has turned out,
contrary to the ethereal experience expected, at least, for many
of its occupants. The dispute relates to the electricity connection
granted to the twin towers of the apartment complex by the
name 'Atlas Celestial Park'.
2. The issue that calls for our consideration is as to
whether the apartment complex must be given a low tension
electricity connection (for brevity 'LT connection') or should it
retain a high tension electricity connection (for brevity 'HT
connection')? The learned single Judge, by judgment dated
20.02.2019 directed that "individual apartment owners will be
granted connection strictly as per the new scheme dated
22.07.2015, and that the existing HT connection will not be
disturbed". This writ appeal is preferred, contending that the
direction to implement the scheme dated 22.07.2015, and the
direction not to disturb the existing HT connection are mutually
inconsistent, since the scheme dated 22.07.2015, as approved,
contemplates the dismantling of the HT connection.
3. W.A. No.1673 of 2019 and W.A. No.1743 of 2019 are
preferred by the association of apartment owners, who represent
those who insist on getting an LT connection while W.A. No.1817
of 2019 and W.A. No.240 of 2020 are filed by independent
apartment owners, who also support the grant of LT connection
to the individual apartments of the complex 'Atlas Celestial Park'.
4. W.A No.1673 of 2019 arises from W.P.(C) No.23730 of
2017, the facts of which, in brief, are as follows: A twin tower
apartment complex by the name 'Atlas Celestial Park' was built
by the 4th respondent consisting of 208 independent apartments.
At the time of handing over of the apartments to the respective
owners in 2012, the condition agreed to by the builder was that
the apartment will be provided with a separate electricity
connection, for which various additional amounts were collected.
However, it was learnt that the connection offered to them was
HT connection, that too, under the commercial tariff category,
and taken in respect of only three door numbers. Even though
the majority of the apartment owners requested the builder for
granting an independent electric connection under the LT
category in domestic tariff, the builder procrastinated the same,
which compelled large numbers of apartment owners to
authorize the association to obtain separate power connections.
It was alleged that though the apartments were handed over in
2012 itself, separate electric connections in the LT category were
denied to the apartment owners, which compelled the petitioners
and few others to approach this Court in W.P.(C) No.6548 of 2016
and W.P.(C) No.27140 of 2015 seeking directions to grant electric
connection. By interim order 10-03-2016, this court directed
appropriate steps to be taken to ensure that LT connection in the
domestic tariff is granted to petitioners and other similarly
situated apartment owners.
5. W.A. No.1817 of 2019 arises from W.P.(C) No.15370 of
2017. The said writ petition was filed by the apartment owners
association along with two apartment owners, who preferred to
retain HT connection for the apartment complex. The relief
claimed in the writ petition was to quash Ext.P5 order of the
KSEB Regulatory Commission and for a declaration that the
Regulatory Commission does not have the jurisdiction to
entertain a complaint in the nature of Ext.P7. The gist of the
facts, as discernible from the writ petition, is that HT connection
was granted to the builder, who in turn had put up individual
meters in every apartment to access the energy consumed and
while so, five apartment owners preferred two writ petitions
seeking individual LT connections to their apartments, wherein,
an interim order was passed on 10.3.2016, directing the
Electricity Board to modify the existing agreement so as to
ensure that electrical supply is given under the LT 1-A tariff to the
petitioners in those writ petitions and other similarly situated
apartment owners in the building in question. While steps were
being taken, a complaint was preferred before the Regulatory
Commission, who ultimately, by Ext.P5 order found that the HT
connection was granted contrary to the provisions of Regulation
49 of the Electricity Supply Code of 2014 and also directed the
Chief Electrical Inspector to enquire into the circumstances that
led to the grant of approval of the scheme of electrification and
the sanction for energizing the internal distribution system
without appropriate provisions for giving individual connections
to the apartments thereby denying the statutory right of the
apartment owners to get the electrical connection as per Section
43 of the Electricity Act, 2003. It was pointed out that the
Regulatory Commission did not have the jurisdiction to decide
the dispute of the nature raised before it. It was further pleaded
that the commission was directed by this Court to decide on the
jurisdiction and it failed to consider the question of jurisdiction
and that Ext.P5 was liable to be set aside.
6. W.A. No.240 of 2020 arises from W.P.(C) No.15370 of
2017. The said writ petition was filed by the apartment owners
association who support the continuance of HT connection. The
proprietor of the establishment that runs a lodge in the
apartment complex had also joined as the 2 nd petitioner. The
relief claimed for in the aforesaid writ petition was identical to
that in W.P.(C) No.15370 of 2017.
7. W.A. No.1743 of 2009 arises from W.P.(C) No.21563 of
2018. The said writ petition was filed by two individual
apartment owners, who preferred to support the retention of HT
connection in the apartment complex. They sought to implement
the directions issued by the Regulatory Commission especially
directions in Clause 38(iii) and Clause 38(iv), which relate to
completing the internal distribution system in accordance with
the approved revised scheme.
8. Since the writ petitions were in effect stating the cases
of the respective factions, We avoid referring to contentions in
the respective counter-affidavits, as a reference to the counter
affidavit filed by the 4 th respondent in W.P.(C) No.23730/2017
would suffice. The 4th respondent in the said writ petition was
the builder who stated that after the apartment complex was
constructed, electricity supply was obtained in the HT
commercial (IV) category with the consent of all the buyers. It
was further stated that the scheme for supply of electricity was
approved by the Chief Electrical Inspectorate and pursuant to
approval, sanction was granted for carrying out the internal
distribution system, and thereafter sanction for energization was
granted. It was also averred by the 4th respondent that pursuant
to the request of individual apartment owners for separate
electrical connection, a new scheme was prepared and the same
obtained approval, a copy of which was produced as Ext.R4(c).
The 4th respondent further stated that after Ext.P4 interim order,
they had requested the individual owners to give their consent so
as to comply with the interim order and had also requested the
Deputy Chief Engineer of KSEB to modify the existing agreement
so as to implement Ext.R4(c) scheme. Pursuant to the request,
by Ext.R4(e), it was informed that after sanction if applications in
the prescribed format are received from the consumers,
directions will be issued to make necessary
modification/termination of the existing HT agreement (if all the
connections can be converted into LT) and effect LT domestic
connection to individual beneficiaries. The 4 th respondent also
pleaded that they had done their part and what remained was for
the individual consumers to do what was required to get a
separate connection under the LT tariff. It was also stated that
the 4th respondent had never denied separate electricity
connection to the apartment complex in the LT tariff and on the
other hand they were not given electricity connection in the LT
tariff because of the fault of the petitioners in providing a
separate internal distribution system.
9. The learned single Judge considered all the above
mentioned writ petitions together. It was noticed in the common
judgment that though the Regulatory Commission was directed
to decide upon its jurisdiction as a preliminary issue, it had failed
to do so. It was also noticed that most of the controversies
projected in the four writ petitions had practically become
irrelevant by the efflux of time. It was further noticed that a new
scheme had been approved on 22.07.2015 and that, if the
builder signs the completion certificate and other necessary
documents, the same can be presented by the petitioners in W.P.
(C) No.23730 of 2017 before the Electrical Inspector for further
action. By the impugned judgment, the learned single Judge set
aside the order of the Regulatory Commission, as sought for in
W..P.(C) No.15370 of 2017, and clarified that the individual
apartment owners will be granted connection strictly as per the
new scheme dated 22.07.2015. While issuing the directions as
stated above, the learned single Judge went further and observed
that the existing HT connection will not be disturbed.
10. A review petition was filed by the petitioners in W.P.(C)
No.23730 of 2017 mainly on two grounds; (1) that there was no
consensus between the parties in terms of the directions
contained in paragraph 16 of the judgment, and (2) the scheme
dated 22.07.2015, as approved, does not provide for HT
connection and hence the direction that the existing HT
connection will not be disturbed renders the directions
unworkable. However, the review petition was dismissed by the
learned Single Judge by judgment dated 11.06.2019. The
appellants are challenging the judgment in the writ petitions to
the extent it directed the existing HT connection not to be
disturbed as well as the judgment in the review petition.
11. We have heard Adv. Ziyad Rahman along with
Adv.Bilwin B., for the appellants, Adv. Sudheer Ganesh Kumar R.,
learned Standing Counsel for the Board, Adv.M.R.Anison, learned
counsel for the Builder and Senior Adv. Jaju Babu as instructed by
Adv.Brijesh Mohan for the supporters of the grant of HT
connection and Sri. N.K.Thankachan learned Senior Government
Pleader.
12. Having noticed the different writ petitions and the
respective challenges as mentioned above, for the purpose of
easier comprehension, we notice that the dispute ultimately boils
down to two factions within the same apartment complex. Both
these factions have formed their respective apartment owners
association - one known by the name "Atlas Celestial Park
Apartment Owners Association" and the other by the name "Atlas
Celestial Park Owners Association" - the former claiming LT
connection to be granted for the apartment complex while the
latter claiming HT connection to be retained.
13. At the initial stage itself, the learned Senior Counsel
Adv. Jaju Babu raised a preliminary objection about the
maintainability of the appeals. Referring to paragraph 16 of the
impugned judgment, it was contended that the impugned
judgment being one passed on consensus, the appeals were not
maintainable.
14. Controverting the said preliminary objection, Adv. Ziyad
Rahman submitted that the review petition was preferred for two
specific purposes, one of which was against the observation in
paragraph 16 that the order was passed on consensus. However,
according to him, the learned single Judge did not consider in the
review petition the above said aspect. It was also stated that one
of the specific grounds in the writ appeal was that the order was
never a consensus order since the consensus was only regarding
the implementation of the scheme. The counsel also argued that
there was also a consensus regarding the disposal of all the writ
petitions. It was reiterated by the learned counsel that there
could not have been any consensus on retaining the HT
connection, since such a consensus or direction would be
contrary to the claim that had been put forward by the appellants
all along and also that such a consensus would have rendered
the directions unworkable. It was also argued that the consensus
mentioned in the Judgement was certainly not on retaining the
HT connection and hence the appeal is maintainable.
15. After bestowing our anxious consideration on the
question of maintainability of this appeal, we find that, in view of
the facts and circumstances arising in the case, appellants are
correct in their submission that there was no consensus on the
aspect of retention of the HT connection. On perusing the
memorandum of the review petition, it is noted that a specific
ground was raised by the review petitioners that there was no
consensus in the manner in which the directions had been issued
by the learned single Judge. Since the learned single Judge had
omitted to consider the said ground while dismissing the review
petitions, the appellants are left with no other remedy other than
preferring this challenge. In the appeal also, specific grounds
have been raised as relating to the consensus recorded in the
judgment. In view of the facts and circumstances arising as
stated above, we are of the view that the consensus recorded by
the learned single Judge in paragraph 16 of the judgment was
the consensus confined to the relief of implementing the scheme,
consensus on setting aside of the order of the Regulatory
Commission as well as consensus on disposing of the writ
petitions together. There could not have been a consensus on
retaining the HT connection. In view of the above, we find that
the appeals are maintainable since they are challenging only that
part of the impugned judgment which directs the existing HT
connection not to be disturbed.
16. Having held as above, we proceed to consider whether
the direction to retain the HT connection is sustainable or not.
We, at this juncture, remind ourselves that there are no appeals
filed by those who claim HT connections. In other words, the
direction in the impugned judgment to grant LT connection in
accordance with the scheme as approved on 22.07.2015 remains
unchallenged presumably because of the consensus.
17. The electricity connection to a high rise building is dealt
with in Regulation 49 of the Electricity Supply Code, 2014 (for
short The Code). Sub clauses (4) to (6) of Regulation 49 of the
Code has relevance to high rise buildings and the same are
extracted as below:
49. Electricity connection to high rise building, colony
and to residential commercial or industrial complex.
(1) xxx xxx xxx xxx xxx
(2) xxx xxx xxx xxx xxx
(3) xxx xxx xxx xxx xxx
(4) The development authority or the promoter or the builder or
the developer or any other person who constructs a colony or a
residential complex or a commercial complex or an industrial
complex or a high rise building shall prepare and obtain
approval from the Electrical Inspector, as detailed scheme of
electrification of the entire colony or complex or high rise
building, with all necessary equipment namely transformer, ring
main unit (RMU) etc., and shall submit the same to the licensee
along with application for service connection.
(5) The development authority or the promoter or the builder or
the developer or such other person, as the case may be, who
constructs such colony or complex or high rise building under
the clauses (a), (b) and (c) of subregulation (1) above, shall, at
his cost, construct the required thermal distribution network,
including the service line, transformer, switchgear etc., as per
the detailed scheme approved by the Electrical Inspector, for
receiving power from the licensee and for distributing it and
shall handover such internal distribution network up to and
including the metering point to the licensee before
commencement of supply of electricity.
(6) The security deposit and other charges if any payable by the
individual consumer therein shall be borne by each of them at
the time of applying for separate electricity connection.
18. A reading of the above provision will reveal that in
respect of high rise buildings, the builder has to prepare and
obtain approval of the scheme of electrification for the entire
high rise building, as per Regulation 49(4) of the Code. After
approval, the builder is also bound to construct the required
internal distribution network including the service line,
transformer, switchgear, etc., as per the scheme approved and
thereafter handover such internal distribution network upto and
including the metering to the KSEB as per Regulation 49(5) of the
Code. The provision then requires application by individual
consumers who have to apply for separate electricity
connections as per Regulation 49(6) of the Code, unless the
application comes under a single point supply under Regulation
49(8).
19. In the instant case, none had applied seeking
permission for a single point supply as contemplated under the
provisions mentioned above. The original application, on the
basis of which HT connection was initially granted, a copy of
which was produced by the learned Standing Counsel, pursuant
to the direction of this Court, shows that the application was
made on 01.10.2015 for three buildings bearing Nos.XIV/188A1
for an area of 286.58 sq.m, Nos.XIV/188A2, for an area of 162.44
sq.m and building No. XIV/188A3 for an area of 15.03 sq.m. In
the tariff category shown in the approval order, there are over-
writings and erasures, that are visible even in the photocopy. On
the basis of an application for three apartments in the apartment
complex, HT connection is stated to have been given for the
entire complex for all the apartments. It raises doubts on the
manner in which such connections were provided. None of the
individual apartment owners, other than the three building
numbers mentioned earlier, had ever applied independently for
the grant of HT connection to their respective apartments. In
such circumstances, we are of the view that the initial grant of
HT connection to the apartment complex constructed by the 4 th
respondent bearing the name 'Atlas Celestial Park' was not
legally valid.
20. In this context, it is also apposite to note that each
individual apartment in the building complex 'Atlas Celestial Park'
is a separate premise as defined under Regulation 2(67) of the
Kerala Electricity Supply Code, 2014. The connected loads of
those individual apartments cannot be included for the purpose
of grant of HT connection unless all those individual apartment
owners had agreed to club together their apartments on account
of some legally permissible arrangements. No such arrangement
is stated to have been in existence for granting HT connection in
2014 nor has any such document been produced. As mentioned
earlier, the application for grant of electricity connection in the
HT category was made only for three premises, that too in the
name of the Executive Director of the builder. The agreement
executed by the KSEB for HT connection was also with the
Builder.
21. In the present scheme approved by the Electrical
Inspectorate, the grant of LT connection to the entire premises
alone have been contemplated. The approved scheme does not
sanction either any HT connection to be retained or HT
connection to be granted to any of the apartments. In fact it has
come out that the scheme contemplates HT connection to be
dismantled. This is evident from the affidavits filed before this
Court pursuant to the direction on 18.09.2020. Affidavits have
been filed by the Electrical Inspector dated 13-10-2020 as well as
the Deputy Chief Engineer of KSEB pursuant to the
aforementioned directions. In the affidavit of the former, it is
stated that "According to the scheme approval No. B3-12308/15/CEI
dated 22.7.2015 issued by the Chief Electrical Inspector, it was
instructed to dismantle the existing HT metering arrangement near
the gate and to execute metering arrangement at LT level for
consumers like flat, hotel, common area etc." Further, in paragraph 3,
it is stated that "Now the hotel and few flat owners want HT tariff
metering to continue. With implementation of the latest approved
scheme, this is not possible as the scheme approval itself demands
dismantling of the HT tariff metering." In the affidavit of the latter,
it is stated as follows: "Therefore the revised scheme for giving
individual connections duly sanctioned by the Chief Electrical
Inspector vide No.B-3-12308/15/CEI dated 22.7.2015 to all
beneficiaries in the entire premises in the high-rise building is feasible
to provide LT supply to them independently. Individual applications
along with necessary documents and valid energization approval of
the scheme in accordance with supply of 2014 are to be submitted by
the prospective consumers." The said statement is a sufficient
indication that the LT connection directed to be granted by the
learned Single Judge cannot co-exist with the HT connection as
per the approved scheme.
22. It is thus evident from the affidavits filed as mentioned
above that the scheme as now approved provides for the grant of
LT connection to all after dismantling the HT connection. In view
of all the above, we find force in the contention of the learned
Counsel for the appellants that the direction to retain the HT
connection in paragraph 16 of the Judgment of the learned Single
Judge is not only unworkable but also non-implementable. We,
therefore, set aside the said direction.
23. At this juncture, we are mindful of the fact that there is
a commercial establishment in the form of a restaurant being run
by the 7th respondent in W.A. No.240 of 2020 in one of the twin
towers of the apartment complex. There is no requirement that
for conducting a commercial establishment, HT connection is
essential. A commercial establishment can be run even on an LT
connection. However, if the owner of the commercial
establishment or any apartment owner wishes to have HT
connection for their particular building, it will be open to such
owner or occupier to make a fresh application. If any such
applications are preferred by any of the apartment owners for HT
connection, respondent Nos. 1 to 3 and 7 shall consider the same
in accordance with law and if they are eligible to be granted such
a connection, the grant of LT connection to the premises, shall
not be treated as an obstacle for considering the grant of such
HT connection.
24. Thus, we set aside the impugned judgment of the
learned single Judge to the extent it has directed, in paragraph
16 of the said judgment, that the existing HT connection will not
be disturbed. All the remaining directions in the impugned
judgment shall continue to be in force.
Writ appeals are allowed to the extent indicated above.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF W.A. No.1673/2019
PETITIONER'S/S' EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE COMMUNICATION BEARING
NO.B3-3445/19-EIE DATED 25.03.2019
ANNEXURE A2 STATEMENT SHOWING THE DETAILS OF THE
EXPENSES INCURRED BY THE 1ST APPELLANT
ANNEXURE A3 TRUE COPY OF THE BUILDING PERMIT DATED
16.08.2010
ANNEXURE A4 TRUE COPY OF THE PARTIAL OCCUPANCY
CERTIFICATE DATED 28.06.2012 ISSUED BY THE
ANGAMALY MUNICIPALITY
RESPONDENT'S/S' EXHIBITS:
NIL
APPENDIX OF W.A. No.1743/2019
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE COMMUNICATION BEARING
NO.B3-3445/19-EIE DATED 25.03.2019.
ANNEXURE A2 STATEMENT SHOWING THE DETAILS OF THE
EXPENSES INCURRED BY THE APPELLANT.
ANNEXURE A3 TRUE COPY OF THE COMMUNICATION BEARING
NO.DB/ATLAS/20-21/22 DATED 14.5.2020
ISSUED BY THE 3RD RESPONDENT
RESPONDENT'S/S' EXHIBITS:
NIL
APPENDIX OF W.A. No.1817/2019
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE COMMUNICATION BEARING
NO. B3-3445/19-EIE DATED 25-03-2019
ANNEXURE A2 A STATEMENT SHOWING THE DETAILS OF THE
EXPENSES INCURRED BY THE 1ST APPELLANT
RESPONDENT'S/S' EXHIBITS:
NIL
