Karnataka High Court
Sri S Siddaraju vs The Bangalore Electricity on 9 July, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO.30664 OF 2014 (GM-KEB)
BETWEEN:
SRI.S.SIDDARAJU
AGED ABOUT 54 YEARS
S/O.SRI.H.G.SIDDAPPA
R/AT.HEGGADADEVANAPURA
ALUR POST
DASANAPURA HOBLI
BANGALORE NORTH TALUK - 562 123.
... PETITIONER
(BY SRI.NATARAJ.R., ADV.)
AND:
1. THE BANGALORE ELECTRICITY
SUPPLY COMPANY
NELAMANGALA - 562 123
BY ITS ASSISTANT EXECUTIVE ENGINEER
2. THE GRAMA PANCHAYATH
ALUR, DASAPURA HOBLI
BANGALORE NORTH TALUK - 562 123.
BY ITS SECRETARY
3. SRI.NARAYANASWAMY H.S.
AGED ABOUT 45 YEARS
S/O.SRI.H.G.SIDDAPPA
MEMBER
ALUR GRAMA PANCHAYATH
R/AT.HEGGADADEVANAPURA
ALUR POST, DASANAPURA HOBLI
BANGALORE NORTH TALUK - 562 123.
... RESPONDENTS
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THAT THE R-2 IS NOT ENTITLED UNDER THE
KARNATAKA PANCHAYATRAJ ACT 1993, TO INSIST UPON
THE PRODUCTION OF NO OBJECTION CERTIFICATION
FOR OBTAINING ELECTRICITY CONNECTION TO THE
HOLLOW CEMENT BLOCK MANUFACTURING UNIT OF THE
PETITONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner aggrieved by the action of the second respondent insisting to produce a No Objection Certificate under the Karnataka Panchayath Raj Act, 1993 to obtain "Electricity Connection" to the hollow cement brick manufacturing unit belonging to the petitioner, and the disconnection of electric supply by the first respondent on 20.03.2014 under endorsement Annexure-S, has presented this petition.
2. In the memorandum of writ petition, it is stated that petitioner and third respondent though full brothers are litigating over title to immovable property amongst others, being land bearing Sy.No.55 measuring about 1 acre 5 guntas at Heggadadevanapura village, 3 Dasanapura Hobli, within the territorial jurisdiction of Alur Gram Panchayath, in O.S.No.124/2013 in which the third respondent (elder brother of the petitioner) when unsuccessful in obtaining an order of temporary injunction restraining petitioner herein and others from changing the nature of the suit properties, challenged the same in MFA Nos.3642 and 3978 of 2013, which stood dismissed by order dated 19.09.2013 Annexure-A. It is said that petitioner established a hollow cement brick manufacturing unit in Sy.No.63 of Heggadadevanapura village and when forced to shut shop since it was within the catchment area of river Arkavathi, a prohibited area, petitioner relocated the factory at Sy.No.55, a self acquired property belonging to the father of the petitioner, on the basis of a General Power of Attorney dated 08.02.2013 authorizing the petitioner to establish a manufacturing unit Annexure- B. Petitioner applied for issue of a general licence by the second respondent to establish a hollow cement brick manufacturing unit in Sy.No.55 which when 4 accepted a license was issued on 24.04.2013 (Annexure-D). So also, second respondent issued a No Objection Certificate Annexure-D to obtain supply of 60 HP electricity. It is the allegation of the petitioner that the third respondent - a member of Alur Gram Panchayath compelled the Panchayath authorities not to issue the license until the conclusion of the Civil suit for partition, following which a resolution dated 27.11.2013 Annexure-'E', was passed by the third respondent indicating that No Objection Certificate for power supply of 20 HP was granted on 06.04.2013 and the request for additional power of 30 HP was refused. It is asserted that on the basis of the general license and No Objection Certificate, the first respondent BESCOM sanctioned electricity supply of 60 HP by sanction order dated 07.11.2013 (Annexure-F).
3. It is the further allegation of the petitioner that at the instance of the third respondent, an endorsement dated 17.12.2013 Annexure-'G' was issued 5 by the second respondent - Panchayath stating that a notice when caused to produce the general licence, No Objection Certificate and tax paid receipt, petitioner had asserted that they were lost, hence, the petitioner's application for 60 HP power supply cannot be processed until conclusion of the civil dispute. In addition, it is alleged that the second respondent issued an endorsement dated 18.12.2013 (Annexure-H) to the third respondent stating that it had not issued license to establish a hollow brick manufacturing unit in Sy.No.55, followed by yet another endorsement dated 20.05.2013 Annexure-'J' to the very same effect. The second respondent is said to have issued a show cause notice dated 03.01.2014 Annexure - 'K' to the petitioner stating that the Panchayath had not issued general license and No Objection Certificate to obtain power supply. Petitioner asserts that he paid the property tax as per receipt (Annexure-L), in respect of land bearing Sy.No.55 put to use for industrial purpose. Petitioner having made an application under the Right to 6 Information Act was responded to by Annexure-M of the second respondent confirming the fact of having received Rs.30,000/- towards property tax.
4. It is further asserted that the President of the Panchayath addressed a letter dated 09.01.2014 (Annexure-N) to the first respondent - BESCOM stating that the Panchayath Development Officer alleged that the general license and No Objection Certificate claimed by the petitioner to have been issued by the Panchayath were fabricated since petitioner had not paid the property tax although the letter further states that the petitioner paid the property tax and the Panchayath had no objection to continue the license.
5. Despite, the representation to the first respondent that petitioner was in possession of all documents nevertheless obstacles were created by the first respondent at the instance of the second respondent - Panchayath in the matter of restoration of electric supply, by yet another letter dated 03.03.2014 7 addressed by the second respondent to the first respondent stated that the request of the petitioner for issue of general license and No Objection Certificate was kept in abeyance. The letter dated 28.12.2013 of the President accepting to issue the license and No Objection Certificate, pending approval of the Panchayath, it is said, respondent No.1 placed all the communications before its Legal Cell for an opinion. This according to the petitioner finally culminated in the report of the Junior Engineer stating that the installation for supply of power was disconnected on 20.03.2014, on the say of the second respondent - Panchayath, since, the general license and No Objection Certificate were fabricated.
6. Learned counsel for the petitioner reiterates the averments set out in the memorandum of writ petition.
7. To a question of this Court, as to whether petitioner obtained an order of the Deputy 8 Commissioner under Section 95 of the Karnataka Land Revenue Act, 1964 for diversion of the agricultural land to non-agricultural industrial purpose, learned counsel is candid in his submission that the petitioner had not done so.
8. If regard is had to the provisions of the Karnataka Land Reforms Act, 1961, in relation to agricultural lands in the State of Karnataka, their classification, more appropriately chapter VI relating to the power of Assistant Commissioner to take action in respect of uncultivated lands; the definition of the term 'agriculture' in Section 2(a)(i) which does not include manufacturing activity and; the definition of the term 'to cultivate' in Section 2(10) as also definition of the term 'land' in Section 2(18), while the term 'Land Revenue' is defined under Section (21-A), it cannot be said that the land in question ie., 1 acre and 5 guntas in Sy.No.55 is agricultural land used for agricultural purposes and not 9 used for non-agricultural purposes, hence liable for payment of land revenue to the State by the Owner.
9. Section 84 under Chapter VI of the Land Reforms Act, 1961 empowers the Assistant Commissioner having jurisdiction of the area in which the land is situated, if satisfied, that the land has remained uncultivated, to issue notice upon the land owner and any other person entitled to be in possession of the land to cultivate the land within the time prescribed, while Section 85 empowers the Assistant Commissioner, after holding such enquiry as may be prescribed, if the agricultural land is not cultivated, to lease out uncultivated land for a period not exceeding five years or on such terms as may be necessary. Apparently, Assistant Commissioner appears to be oblivious of non-cultivation of agricultural land in Sy.No.55, falling within his territorial jurisdiction. Therefore, the Assistant Commissioner and the Revenue Authorities have failed to perform their obligations 10 under Karnataka Land Reforms Act, 1961 calling for stringent action.
10. Section 95 of the Karnataka Land Revenue Act, 1964 provides for uses of agricultural land and the procedure for use of agricultural land for other purposes. The statute provides for diversion of use of agricultural land to non agricultural purposes, subject to the provisions of the Karnataka Town and Country and Planning Act, 1961, if the lands fall within the master plan published under the said Act.
11. Petitioner apparently has not sought diversion for use of the agricultural land to non- agricultural industrial purposes and therefore violated rule of law. The fact that petitioner has asserted in the memorandum of writ petition that he has "established" a manufacturing unit for hollow cement blocks in Sy.No.55 is sufficient evidence of the said fact, though a faint effort is made by the learned counsel for the 11 petitioner that the manufacturing process is not yet commenced.
12. It is also not known whether the land in question falls within the territorial jurisdiction of the Town Planning Authority to which the revised master plan applies. It is also not known whether it falls within the territorial jurisdiction of Bangalore International Airport Planning Authority. There is no material forthcoming from the memorandum of writ petition as to which planning Authority would have jurisdiction over the Sy.No.55 of Heggadadevanapura village, though must fall within some planning Authority in the State of Karnataka. Failure to notice the illegality committed by the petitioner over the use of the land in question, the Planning Authority too is answerable and liable for not discharging their obligation under the Karnataka Town and Country Planning Act, calling for action.
13. The failure on the part of the Deputy Commissioner to initiate action against the petitioner 12 and his father who is said to have executed the General Power of Attorney, in the light of Section 95 of the Karnataka Land Revenue Act, action deemed fit is to be initiated against that Authority.
14. If regard is had to the aforesaid provisions of law, it is needless to state that the Revenue Department of the State of Karnataka deserves to be hauled up for negligence in the discharge of their statutory duties. The citizens of the State of Karnataka have reposed faith and confidence in the State Government who has employed persons, who are invested with jurisdiction to perform statutory obligations. It is high time that the State and its Authorities wake up from their deep slumber and weed out deadwood, while, at the same time initiate action against the petitioner in accordance with law, for the use of agricultural land to non- agricultural industrial purposes, without authority of law.
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15. The fact as to whether Alur Gram Panchayath functioning under the Karnataka Panchayath Raj Act, 1993, did or did not issue a general license either under sections 54, 55 and 56 of the said Act, while there is no provision for issue of a No Objection Certificate, suffice it to notice that the said Panchayath has no jurisdiction or competence to issue a license in the absence of agricultural land in Sy.No.55 being permitted to be used for non-agricultural industrial purpose. If the Gram Panchayath has received money from the petitioner towards property tax, must forthwith refund the amount as it had no jurisdiction to receive the same. It is for the Revenue Department to recover Land Revenue.
16. It is necessary to point out that Chapter XIII of the Karnataka Panchayath Raj Act, 1993, Section 199 provides for levy of taxes, rates etc., by the Gram Panchayath upon buildings and lands which are not subject to "Agricultural Assessment" (emphasis 14 supplied), while the prescription is under the Karnataka Panchayath Raj (Gram Panchayat Taxes and Fees) Rules, 1994 prescribed the methodology for the assessment and levy of taxes over vacant lands and buildings. Petitioner has failed to establish that the Gram Panchayath complied with the provisions of Section 199 of the Act read with the aforesaid Rules for levy of taxes on Sy.No.55 enabling the petitioner to put up a manufacturing unit on agricultural land.
17. Yet again, the Authorities of the Gram Panchayath need to be informed about perpetuating an illegality, if Annexure-C dated 24.04.2013 general license and Annexure-D date not forthcoming are issued by the Gram Panchayath in favour of the petitioner to carry on manufacturing activity in Sy.No.55 of Heggadadevanapura village. The State Government is directed to take action against the Panchayath Development Officer and other such officer of Alur Gram 15 Panchayath for having committed an illegality and violated rule of law.
18. BESCOM without application of mind to all relevant material, appears to have gone about its business of supplying electricity, not noticing that it is impermissible to supply electric energy to a premises which is illegally used for non-agricultural activity. The Karnataka Electricity Regulatory Commission (Electricity supply and distribution) Code, 2000-01 framed under Section 11 of the Karnataka Electricity Reforms Act, 1999, empowers the Commission to regulate interalia, the distribution, supply and utilization of electricity, to issue license determine the conditions, in accordance with the provisions of the Act and to regulate the working of the licensees and to set up standards for the electricity industry in the State as also and the standard of service to the consumers by the licensees. The term 'agreement' under Section 2.02 of the said Code is defined to mean an agreement 16 entered into by the licensee and the consumer under Section 4.06 of the Code. A 'consumer' is defined under Section 2.14 to means and include any person who or whose installation, is supplied with electricity or who has executed an agreement with the licensee for the supply of electricity or any person whose installation is for the time being connected for the purpose of receiving electricity or whose installation has been disconnected or who has registered an application with the licensee for power supply connection. The term 'licensee' is defined under Section 2.34 to mean holder of a licence for distribution or for retail supply or for both issue under Section 19 of the Karnataka Electricity Reforms Act, 1999, while Section 2.50 defines 'premises' to mean the area/portion of the building/shed/field etc., for which the electric connection has been applied for or sanctioned for a single consumer.
19. A conspectus of the provisions of the Code indicate that petitioner having made an application for 17 supply of electricity, being a consumer must have entered into an agreement with the first respondent licensee for supply of electricity to the agricultural land in Sy.No.55 for manufacturing activity ie., industrial purpose for manufacturing of hollow cement blocks. Petitioner has not mentioned whether an agreement is entered into between himself and first respondent though it is contended that electricity was supplied to the agricultural land in Sy.No.55. If such an agreement is entered into between the parties, as is obvious since electricity was supplied and later on disconnected, the grievance over disconnection ought to be remedied in terms of the agreement. Recourse must be had to interpretation of the terms in accordance with the Contract Act, hence cannot be conveniently adjudicated in a writ proceedings and therefore, petitioner must stand relegated to the competent civil Court or Arbitration, if the agreement provides for arbitration, under the Arbitration and Conciliation Act, 1996. 18
20. The answers to the allegations against the third respondent - petitioner's elder brother relate to disputed questions of fact which cannot be conveniently adjudicated in a writ proceedings of the Article 226 of the Constitution of India, by permitting parties to file affidavits.
21. In the circumstances, petitioner being a violator of rule of law is disentitled to equity in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.
22. Petition is accordingly rejected. Let a copy of this order be forwarded to the Chief Secretary, Government of Karnataka for action and to submit an action taken report by the 30th of August 2014.
The memo filed by the learned counsel for the petitioner, is rejected.
Sd/-
JUDGE GH