Kerala High Court
Ayshommabi vs The Executive Officer on 26 October, 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939
WP(C).No. 39458 of 2015 (F)
----------------------------
PETITIONER(S):
------------------------
1. AYSHOMMABI,
AGED 65 YEARS, W/O.LATE ARABIYODA MUTHUKOYA
KEEPPATTACHARABIYODA MAPPADAILLAM, AGATTI ISLAND.
2. SHRI.ABDUL KALAM AZAD,
AGED 55 YEARS, S/O.KUNKUKOYA,
KEETETTACHARABIYODA MEPADDI ILLAM
AGATTI ISLAND.
BY ADV. SRI.A.G.ADITYA SHENOY.
RESPONDENT(S):
--------------------------
1. THE EXECUTIVE OFFICER,
VILLAGE (DWEEP) PANCHAYATH, AGATTI ISLAND.
2. THE ASST. EXECUTIVE ENGINEER,
ELECTRICITY BOARD, AGATTI ISLAND.
3. THE STATION HOUSE OFFICER,
AGATTI POLICE STATION, AGATTI.
4. THE DEPUTY COLLECTOR,
OFFICE OF THE DEPUTY COLLECTOR,
LAKSHADWEEP ADMINISTRATION,
GOVERNMENT OF INDIA AGATTI ISLAND, PIN- 682 553.
BY ADV. SRI.MANU.S, CGC.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23-08-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 39458 of 2015 (F)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT:P1: TRUE COPY OF THE NOTICE DATED 26.10.2015 BEARING
NO.F.13/16/2012/DCA ISSUED BY THE 4TH RESPONDENT.
EXT:P2: TRUE COPY OF THE REPLYDATED 30.10.2015 SUBMITTED BY
THE 2ND RESPONDENT BEFORE THE 4TH RESPONDENT.
EXT:P3: TRUE COPY OF THE NOTICE BEARING NO.F.13/16/2012/DCA
DATED 30.10.2015 ISSUED TO THE 1ST PETITIONER.
EXT:P4: TRUE COPY OF THE JUDGMENT DATED 03.11.2015 IN
W.P.C.33464/2015 ON THE FILES OF THE HONOURABLE
HIGH COURT OF KERALA.
EXT:P5 TRUE COPY OF THE REPLYDATED 16.11.2015 SUBMITTED BY
THE 1ST PETITIONER.
EXT:P6: TRUE COPY OF THE ORDER DATED 11.12.2015 BEARING
NO.F.13/22/2015/DCA ISSUED BY THE 4TH RESPONDENT.
EXT.P7 TRUE COPY OF THE ORDER BEARING NO.F.NO.13/2/2016-DCA(13)
DATED 30/05/2016 ISSUED BY THE 4TH RESPONDENT.
EXT.P8 TRUE COPY OF THE PERMISSION FOR DIVERSION OF USE OF
LAND FROM ONE PURPOSE TO ANOTHER BEARING NO.F.NO.13/3/
2016-DCA(09) DATED 26/07/2016 ISSUED BY THE 4TH RESPONDENT.
EXT.P9 TRUE COPY OF THE COMMUNICATION BEARING NO.F.NO.15/2/AGT/
2014-ELE DATED 09/11/2016 ISSUED BY THE 2ND RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
DEVAN RAMACHANDRAN, J.
========================
W.P.(C) No.39458 of 2015
========================
Dated this the 23rd day of August 2017
JUDGMENT
The petitioners claim that an extent of 90 Square meter in Agathi Island, under the Lakshadweep Administration, comprised of in Sy.No.998/2, is in the ownership of the first petitioner. The second petitioner is stated to be the brother of the first petitioner. According to the petitioners, in order to enable the son of the first petitioner to put up a shop for conducting a medical shop, they erected a building in the said property and applied for an electric connection. The petitioners say that even though they were given permission for such construction as per Exts.P7 and P8, the fourth respondent issued Ext.P9 rejecting their request for electricity connection to the said building. The petitioners, have therefore, filed this writ petition seeking that Ext.P9 be quashed and a for a further direction to respondents 1 and 2 to consider their application for electricity connection in the building constructed by them.
2. I have heard the learned Counsel for the petitioners W.P.(C) No.39458 of 2015 2 Sri.A.G.Aditya Shenoy and the learned standing Counsel for the respondents Sri.S.Manu.
3. The learned Standing Counsel for the respondents Sri.S.Manu submits vehemently that the very construction made by the petitioners in the property owned by them is illegal since they have not obtained permission for such construction, as is mandatorily required under Regulation 20 of the Lakidi Minikoy and Amini Islands Land Revenue and Tenancey Regulation 1965. According to him, the petitioners could not have constructed the building without such a permission and therefore that the construction itself is unlawful and liable to be demolished.
4. The learned Counsel appearing for the petitioners Sri.Aditya Shenoy, however, submits that the petitioner has constructed the building with full knowledge of and permission from the competent respondents and he produced on record Exts.P7 and P8 documents in support of his submission. According to him, once Exts.P7 and P8 were issued, it was not justified on the part of the second respondent to deny electricity connection, as has been done Ext.P9. He therefore, assails W.P.(C) No.39458 of 2015 3 Ext.P9 as been illegal and unlawful.
5. I have considered the pleadings on record and the submissions made by the learned Counsel as above.
6. The construction has been completed by the petitioners even according to them was in the year 2015. I notice that Exts.P7 and P8 orders have been issued only in the year 2016. Therefore, obviously the construction has been made prior to the alleged sanction obtained by the petitioners. There is, therefore, great force in the submission of Sri.S.Manu learned Standing Counsel for the respondents that the construction was carried on by the petitioner without permission and in violation of the Regulations mentioned above.
7. However, it is also ineluctable that subsequent to such construction, the petitioners have obtained three orders namely, Exts.P6, P7 and P8 in their favour, which would lead to a suspicion that some kind of ex post facto sanction was given to such construction by the concerned authority. The answer to this is offered by Sri.S.Manu, stating that Exts.P7 and P8 were issued by the Authority without noticing an earlier order, namely, W.P.(C) No.39458 of 2015 4 Ext.P6 order issued as early as on 11.12.2015, denying such permission. However, what becomes pertinent, if one examines Exhibit P6 on one hand and Exts.P7 and P8 on the other is that all these three documents have been issued by the same Authority, namely the fourth respondent District Collector. It therefore is difficult to comprehend the submission of Sri.S.Manu that the fourth respondent had issued Exts.P7 and P8 orders without noticing his own earlier order, namely, Ext.P6. That being said, it may certainly be possible that he had omitted to advert to Ext.P6 while issuing Ext.P7 and P8, as submitted by Sri.S.Manu, however, the fact remains that all these documents have been issued by the same Authority and it would have been only in the proprietary of things that such Officer had exercised some more caution and care while issuing official orders.
8. The Learned Standing Counsel for the respondents at this point submits that the fourth respondent, being aware of this position, has, in fact, issued a fresh order withdrawing Exts.P7 and P8, adverting to Exhibit P6 order. I am afraid that this line of action taken by the fourth respondent cannot be found to be W.P.(C) No.39458 of 2015 5 legally correct. This is because, he is the same Authority who had issued Exts.P7 and P8 and he cannot therefore, issue another order withdrawing benefits under it merely because he had not adverted to Ext.P6, while issuing the same. These are issues, which, in my view, could have been done only by a superior Authority if something wrong was noticed in Exts.P6, P7 or P8 orders. As long as such a superior Authority has not taken such action, it would not be possible for the fourth respondent to casually say that he is withdrawing Exts.P7 and P8 so as to give effect to Ext.P6 order.
9. In such circumstances, I find favour with the case of the petitioners, and I, therefore, order this writ petition quashing Ext.P9 order but granting liberty to the competent superior Authorities in the hierarchy to initiate such action as would be warranted, if it is found that Exts.P7 and P8 have been issued illegally by the fourth respondent especially in view of the earlier Ext.P6 proceedings. Unless and until such proceedings are issued by the competent superior Authorities, the petitioner would be entitled to the benefit of an electricity connection as W.P.(C) No.39458 of 2015 6 applied for by him on the strength of Exts.P7 and P8. I clarify that my intention is only to give the petitioner the benefit under Exts.P7 and P8 as long as those orders hold the field legally. If those orders are set aside, through a valid order issued, by an Authority, superior to the fourth respondent after following due procedure, with notice to the petitioners, they would have to abide by such orders, subject to their available remedies under law.
This writ petition is ordered accordingly.
DEVAN RAMACHANDRAN JUDGE jm/