IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No. 1077 OF 2017 (GM-KEB) BETWEEN:
KASIM HAJI SON OF AHMED, AGED 59 YEARS, RESIDING AT BELAL MANZIL, N.S.ROAD, HEJMADI POST, UDUPI DISTRICT-574103 ...APPELLANT (BY SRI. S. RAJASHEKAR, ADVOCATE) AND 1. STATE OF KARNATAKA DEPARTMENT OF ENVIRONMENT AND FOREST, VIDHANA SOUDHA, DR.B.R.AMBEDKAR VEEDHI, BENGALURU-560 001.
REPRESENTED BY SECRETARY.
2. MANGALURU ELECTRICITY SUPPLY CO. LTD., OFFICE OF ASSISTANT EXECUTIVE ENGINEER (DIVISION) WORK & EXECUTION SUB-DIVISION, BELTHANGADY-574 214.
3. MOHAMMED MUJEEB SON OF MOHAMMED USMAAN, AGED 57 YEARS, SUPRIYA WOOD INDUSTRIES, KALMANJA VILLAGE, NIDGAL POST, BELTHANGADI TALUK, D.K.DISTRICT – 574214.
...RESPONDENTS (BY SRI. S.S. MAHENDRA, AGA FOR RESPONDENT No.1 SRI. H.V. DEVARAJU, ADVOCATE FOR RESPONDENT No.2 SRI. SUBRAMANYA, ADVOCATE FOR RESPONDENT No.3) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.48831/2016 DATED 22/11/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 22.11.2016 passed by the learned Single Judge in W.P. No. 48831 of 2016, by which the petition was allowed, respondent No.3 is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash communication issued by the second respondent bearing No. SA. KA. HIM (V) / E.SA / BAE /5136/2015-16 dated 26/28.03.2016. The petitioner claims that he is engaged in the business of running Sawmill. The third respondent purchased the property in Sy.No.230/1B1 measuring 30 cents from one Sri.Ramanath Kamath, wherein Saw mill by name M/s. Friends Wood Industry was running. On purchase of the said property, the third respondent got the license to run the Saw mill transferred in his name and business in the name of “Supriya Wood Industries”. The third respondent also entered into an agreement with Sri.Ramanath Kamath to purchase the property in Sy.No.230/1B2C measuring 54 cents and in Sy.No.177/2A1AP2 measuring 38 cents situated at Kalmanja village, Belthangady Taluk. The third respondent entered into an agreement on 16.06.2004 to sell the property in Sy.No.230/1B1 measuring 30 cents along with saw mill and properties No.230/1B2C and Sy.No.177/2A1AP2 where he holds agreement for sale. On the date of agreement, the petitioner had paid Rs.2.00 lakhs as advance by way of cash and remaining amount was required to be paid on or before 16.06.2005 and to get the sale deed executed. In respect of the Saw mill which was permitted to be run by the petitioner, the petitioner had agreed to pay Rs.15,000/- per month to the third respondent. Thereafter, one more agreement was entered into on 29.01.2006 wherein the petitioner paid additional advance amount of Rs.2,00,000/-. In the agreement, the third respondent had permitted the petitioner to manage and run the Saw mill and also executed General Power of Attorney dated 05.02.2006 in favour of the petitioner to enable him to seek necessary permission and renewal of license for running the Saw mill. Again on the demand of third respondent, the petitioner paid further amounts. In the meanwhile, Sri.Ramanath Kamath executed the sale deed in respect of the properties for which he had executed an agreement to sell. The petitioner requested the third respondent to execute the sale deed in respect of the agreement dated 16.06.2004. In the meanwhile, the petitioner renewed the license of the Saw mill approaching Deputy Conservator of Forests. Subsequently, the petitioner purchased the Saw mill license from the third respondent by entering into an agreement dated 08.07.2015. The petitioner also obtained trade license from Kalamanja Grama Panchayat. Based on the documents, the second respondent Electricity Company transferred the power supply license and entered into power supply agreement dated 19.01.2016 with the petitioner. Thereafter, the petitioner also approached the Deputy Conservator of Forests for transfer of Saw mill license in the name of the petitioner. It is stated that the third respondent raised further demand of Rs.50,00,000/- and approached the Grama Panchayat seeking to cancel the trade license granted in favour of the petitioner. The third respondent also proceeded to cancel the General Power of Attorney executed in favour of the petitioner. As the third respondent was making unlawful demand and was coming in the way of running the Saw mill, the petitioner having no other alternative, filed O.S.No.17 of 2016 before the Principal Civil Judge (Sr.Dn.) and JMFC, Belthangady for specific performance of the contract. The Civil court having found prima facie case, granted an interim order of injunction, restraining the third respondent from interfering with the peaceful possession of the suit schedule property and the Saw mill. In the meanwhile, the third respondent approached Deputy Conservator of Forests for cancellation of Saw mill license issued in favour of the petitioner. The Deputy Conservator of Forests suspended the Saw mill license without providing any opportunity to the petitioner which was challenged by the petitioner in W.P.No.44465 of 2016. In the said writ petition, an interim order was passed staying the cancellation of the order passed by the Deputy Conservator of Forests. Further the second respondent MESCOM ordered canceling the power supply agreement and restored the same in the name of the third respondent on the representation made by the third respondent. It is stated that the second respondent is not justified in canceling the power supply agreement standing in the name of the petitioner that too without issuing notice or hearing the petitioner.
3. Aggrieved by the communication dated 26/28.03.2016 of the second respondent, the petitioner filed the instant writ petition. The learned Single Judge by order dated 22.11.2016 allowed the writ petition and quashed the communication dated 26/28.03.2016 of the second respondent and directed to continue to supply power to the petitioner in his own name subject to payment of consumption charges by the petitioner, on regular basis. Aggrieved by the same, the third respondent is in appeal.
4. Heard the learned counsel for the appellant/ respondent No.3 and learned counsels for the petitioner and other respondents.
5. Learned counsel for the appellant/respondent No.3 would submit that the order of the learned Single Judge is wrong and contrary to law. It is contended that the learned Single Judge failed to consider condition No.36.01 of General Conditions of Supply of Electricity Distribution License in its proper perspective. Further it is stated that in the absence of consent letter from the owner, the transferee has to produce the proof of ownership. The learned Single Judge wrongly applied condition No.36.01 which is applicable only to the non-commercial lighting usage. Hence prays for allowing the appeal.
6. Per contra, learned counsels for the respondents would support the order of learned Single Judge and submit that the learned Single Judge properly applying the clause in Supply of Electricity Distribution License has rightly allowed the writ petition. Further the learned Single Judge having taken note of the pending civil suit has observed that the present order will not affect the respective rights of the parties in the pending civil case filed for specific performance.
7. Having heard the learned counsels for the parties and having perused the appeal papers, we are of the view that the order passed by the learned Single Judge is neither perverse nor erroneous so as to call for interference.
8. The petitioner entered into an agreement on 16.06.2004 with respondent No.3 for purchase of certain properties including Sy.No.230/1B1 measuring 30 cents along with the Saw mill. In the said agreement, the petitioner has agreed to pay Rs.15,000/- per month to the third respondent for having permitted him to run the Saw mill. Subsequently, the petitioner has paid the amounts on demand by the third respondent. On 29.01.2006, one more agreement came to be entered into between the petitioner and the third respondent wherein the petitioner paid additional advance amount of Rs.2,00,000/- and the third respondent permitted the petitioner to manage and run the Saw mill, pursuant to which, the petitioner obtained necessary permission and renewal of license for running the Saw mill. The third respondent also executed General Power of Attorney in favour of the petitioner for obtaining necessary permission and renewal of license for running the Saw mill. The petitioner also obtained renewal of license of the Saw mill. Subsequently the petitioner entered into an agreement dated 08.07.2015 to purchase the Saw mill license and also obtained trade license from Kalmanja Grama Panchayat.
9. On the representation of the third respondent, the Deputy Conservator of Forests had cancelled the license granted in favour of the petitioner and the same was challenged before this Court in W.P.No.44465 of 2016 wherein interim order of stay was granted. Subsequently on the representation of the third respondent, the second respondent cancelled the power supply agreement with the petitioner. In the meanwhile, the petitioner had filed O.S.No.17 of 2016 before the Civil Judge (Sr.Dn.) and JMFC, Belthangady for specific performance of the contract. It is stated that the second respondent, before issuing the impugned communication dated 26/28.03.2016 had not issued any notice to the petitioner. Based on the agreement said to have been executed by the third respondent in favour of the petitioner, the second respondent MESCOM had transferred the power connection of Saw mill sanctioned in favour of the petitioner. Once having granted power connection in the name of the petitioner, the respondent No.2 could not have withdrawn the same without any notice to the petitioner. Moreover, the Civil Court had granted an interim order of injunction in favour of the petitioner restraining the third respondent from interfering with the possession of the suit schedule property and Saw mill situated therein. It is pertinent to note here itself that the third respondent challenged the granting of injunction in favour of the petitioner in MFA No.3401 of 2016 before this Court and the same was disposed off directing the parties to maintain status quo.
10. The learned Single Judge in his order has extracted clause 36 of General Conditions of Supply of Electricity Distribution License in the State of Karnataka. Relying on clause (a)(ii) of 36.01, the learned Single Judge held that an occupant of the premises in question under the power of attorney or a lease receipt, could get the power connection transferred in their name. It is not in dispute that the petitioner is in occupation of the Saw mill in question carrying on his business. The second respondent based on the agreement had recognized the petitioner as occupant and had entered into power supply agreement. There is also an interim order from the Civil Court in the pending suit for specific performance. In those circumstances, there is no reason for the second respondent to issue the impugned communication. The rights of the parties, as observed by the learned Single Judge would be subject to the result of the pending civil suit. Hence, we are of the view that respondent No.3 has not made out any ground to interfere with the order of the learned Single Judge. Accordingly, the writ appeal is dismissed.
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JUDGE JUDGE mpk/-* CT:KHV