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Allahabad High Court · body

2004 DIGILAW 2099 (ALL)

Rajesh Kumar Gupta v. State of U. P.

2004-10-15

TARUN AGARWALA, V.M.SAHAI

body2004
qJUDGMENT Tarun Agarwala, J.—The petitioner has filed the present writ petition praying for a writ of certiorari quashing the order dated 8.7.2004, passed by the Sub-Divisional Officer, Naini, Allahabad, respondent No. 3 and for a writ of mandamus commanding the authorities to restore the electricity connection in the shop of the petitioner. It transpires that the petitioner applied for an electricity connection on 27.5.2004 and after completion of the formalities and payment of necessary charges towards security money, meter charges etc. the electricity connection was sanctioned and energized on 27.6.2004. On 8.7.2004, the Sub-Divisional Officer, Naini, Allahabad, respondent No. 3, passed an order disconnecting the electricity connection on the ground that the electricity connection was obtained by concealment of material fact and that a Court case was pending in relation to an electricity dispute, which had been deliberately concealed by the petitioner. The petitioner made a complaint to the Executive Engineer, alleging that the electricity supply had been disconnected on account of the personal malice of the Sub-Divisional Officer. In spite of making this representation, no action was taken by the authorities consequently, the present writ petition was filed for the restoration of the electricity connection. 2. The Sub-Divisional Officer, Naini, Allahabad, respondent No. 3, has filed his own affidavit. From a perusal of said counter-affidavit, the facts which have been culled out is that the landlord applied for a permanent disconnection on 30.12.2003 and after completing the formalities, a permanent disconnection was made. Subsequently, the tenant, namely, the petitioner filed a Suit No. 2421 of 2003 in which a temporary injunction was granted to the effect that the petitioner shall not be evicted from the premises in question except in accordance with law. It further transpires that since the landlord had disconnected the electricity supply in the shop in question, the petitioner moved an application in his own name for sanction of a new connection. This connection was sanctioned, but subsequently, disconnected by the order of the Sub-Divisional Officer, Naini, Allahabad, on the ground that the petitioner had concealed material facts. 3. It further transpires that since the landlord had disconnected the electricity supply in the shop in question, the petitioner moved an application in his own name for sanction of a new connection. This connection was sanctioned, but subsequently, disconnected by the order of the Sub-Divisional Officer, Naini, Allahabad, on the ground that the petitioner had concealed material facts. 3. The respondents in their counter-affidavit has contended that the petitioner did apply for an electric connection which was sanctioned, but before the electricity connection could be energized, a complaint was made by the landlord in which an order was passed stating therein that no electricity connection should be given, but the petitioner in connivance with the lower officials of the department, got the connection energized. The respondents further alleged that the electricity connection was also disconnected on the ground that the petitioner had failed to submit proof of ownership or of tenancy and that the indemnity was not given, as prescribed under the Rules. The petitioner also did not disclose that a dispute was pending with the landlord and therefore, the petitioner was not entitled for a connection. 4. We have heard Sri S. P. Singh, the learned counsel for the petitioner and Sri W. H. Khan, the learned counsel appearing for the respondents. 5. The learned counsel appearing for the respondents submitted that the electricity connection was obtained by the petitioner by concealment of material facts and consequently, upon knowing the correct facts, the electricity connection was disconnected. The learned counsel submitted that under the Electricity Supply Code, one of the requirements for a grant of a new connection is, that the applicant should give the proof of ownership or proof of occupancy and that he should also give an indemnity as prescribed under the rules which the petitioner did not give. The learned counsel further submitted that there was a dispute pending between the petitioner and the landlord which was not disclosed by the petitioner and therefore, in view of all the aforesaid facts, the connection so granted was rightly disconnected by the department. 6. In our view, the submission made by the learned counsel for the respondents is devoid of any merit and is liable to be rejected. 7. It is quite clear that a novel method has been adopted by the landlord to evict his tenant. 6. In our view, the submission made by the learned counsel for the respondents is devoid of any merit and is liable to be rejected. 7. It is quite clear that a novel method has been adopted by the landlord to evict his tenant. It transpires that the landlord was not happy with the petitioner, who was his tenant, and therefore, in order to force him to evict the petitioner from the premises, he applied for a permanent disconnection in December, 2003, which was granted and the electricity was disconnected from the shop in question. The petitioner fearing illegal eviction from the shop filed a suit for injunction in which a temporary injunction was granted restraining the landlord from evicting the petitioner except in accordance with law. The petitioner, thereafter, applied for a new connection, which was duly processed and requisite charges, namely, processing charges, cost of meter and the security deposit, etc. as demanded by the respondents was deposited by the petitioner on 24/25.6.2004 and after completion of the entire formalities, the connection was energized on 27.6.2004. 8. In order to test the arguments raised by the learned counsel for the respondents, it is necessary to consider a few provisions of the Act. Section 43 (1) of the Electricity Act, 2003 contemplates : “Duty to supply on request.—Every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply.” 9. U. P. Electricity Regulatory Commission accorded its approval to the Electricity Supply Code, 2002. This Electricity Supply Code, 2002, provides the procedure for connection, disconnection, reconnection, assessment of load, payment of bills, etc. etc. 10. Clause 2.2 (aj) of the Electricity Supply Code defines ‘Occupier’ : “‘Occupier’ means the owner or person in occupation of the premises where energy is used or proposed to be used.” 11. From perusal of Section 43 of the Electricity Supply Act read with clause 2.2 (aj) of the Electricity Supply Code, it is clear that electricity connection can be granted to an owner or occupier of the premises. The word ‘Occupier’ has been defined to mean the owner or person in occupation of the premises.” 12. Clauses 4.8 to 4.17 of the Code are being quoted hereunder : “4.8. The word ‘Occupier’ has been defined to mean the owner or person in occupation of the premises.” 12. Clauses 4.8 to 4.17 of the Code are being quoted hereunder : “4.8. Application for new connections, in prescribed form (Annexure-4.1) and complete in all respects and accompanied by the prescribed Registration-cum-processing fee, shall be filed in duplicate in the office of the Sub-Divisional Officer along with attested true copies of the following documents : (a) Proof of ownership of the premises in the form of registered sale deed or partition deed or succession or heirship certificate or deed of last Will Or Proof of occupancy such as valid power of attorney or latest rent paid receipt or valid lease deed along with an indemnity form as per Annexure-4.2. (b) Approval/permission of the local authority, if required under any law/statute. (c) In case of a partnership firm, partnership deed. (d) In case of a limited company, Memorandum and Articles of Association and Certificate of incorporation. (e) Work Completion and Test Certificate, in the prescribed format (Annexure-4.3), given by the licensed electrical contractor. 4.9. Licensee shall arrange to assist the applicants, if required, in completing the application form. 4.10. The licensee shall verify the application and the enclosed documents at the time of receipt of application. A written acknowledgment shall be issued on the spot. The acknowledgment shall contain the date of proposed inspection (not later than 7 days), if the application is complete or the shortcomings if the application is incomplete. 4.11. The applicant along with the licensed contractor or his representative shall be present during the inspection. During the inspection, the licensee shall : (a) Satisfy himself regarding the Work-Completion Certificate and the test report submitted by the applicant. (b) In consultation with the consumer, fix the point of supply and the place where meter and the MCB etc. shall be fixed. (c) Estimate the distance between the point of supply and the nearest distribution mains from where supply could be given. (d) Determine if the supply line is to go over any property belonging to a third party. (e) Verify other particulars mentioned in the application form, if required. 4.12. shall be fixed. (c) Estimate the distance between the point of supply and the nearest distribution mains from where supply could be given. (d) Determine if the supply line is to go over any property belonging to a third party. (e) Verify other particulars mentioned in the application form, if required. 4.12. If the Licensee is satisfied and no new pole is to be erected and underground cable is not to be laid for giving the supply, the licensee shall intimate at the spot, in writing, the charges that need to be deposited for obtaining the supply. In other cases, the estimate of the work and other charges shall be intimated to the applicant within 7 days of the site inspection. The charges shall include security deposit, charges for laying the service line and system loading charges etc. as determined by the licensee with the approval of the Commission. 4.13. If the licensee is not satisfied, he shall intimate to the applicant shortcomings on the spot. The applicant shall be required to get the defects removed. Inspection shall again be conducted as per clause 4.12 and a fee, as prescribed, may be charged for such subsequent inspections. 4.14. The applicant shall deposit the requisite charges, the requisite way leave permission if the supply line is to go over the property not belonging to the applicant. If the consumer desires to procure the meter and MCB himself, the same shall also be deposited with the licensee who shall satisfy himself about the accuracy of the meter installed. 4.15. The applicant shall provide a board at the point of supply where meter and MCB shall be installed. 4.16. The licensee shall, upon completion of formalities as indicated in clause 4.14, intimate the date when the meter shall be installed. The meter and MCBs etc. shall be installed and sealed in the presence of the applicant on the appointed date and the connection shall be energized immediately thereafter. 4.17. The supply shall be given within 7 days after deposit of charges, meter, etc. as per clause 4.16, if no new pole is to be erected. In other cases, the supply shall be given within 30 days.” 13. 4.17. The supply shall be given within 7 days after deposit of charges, meter, etc. as per clause 4.16, if no new pole is to be erected. In other cases, the supply shall be given within 30 days.” 13. The contention of the respondents that it was not known as to whether the petitioner was a lawful occupier or not and that no proof of his tenancy was filed before the respondents seems to be an afterthought. The arguments of the learned counsel for the respondents is wholly erroneous, inasmuch as the suit filed by the petitioner as well as the complaint given by the landlord clearly indicates that the petitioner was a tenant. The petitioner had also filed a report of the Shram Parivartan Adhikari, which intimated that the petitioner was in possession of the shop in question. This by itself was sufficient for the respondents to arrive at a conclusion with regard to the occupancy of the shop by the petitioner. In any view of the matter, under clauses 4.10 and 4.11 the licensee was required to verify the application of the petitioner and inspect the premises in question and only after being satisfied that the petitioner was a lawful occupant could direct the applicant to deposit the necessary charges under clause 4.12 and only thereafter, the licensee was required to energize the connection. The respondents in their counter-affidavit have not shown anything nor suggested that the various procedures contemplated in clauses 4.8 to 4.17 of the Electricity Supply Code was not complied. It is therefore, quite clear that the connection was granted after complying with the various procedures as per the provisions of the Code. The mere fact that an indemnity was not given by the petitioner is only an irregularity, which could be cured. It was open to the respondents to ask the petitioner to furnish an indemnity, but after energizing the connection, the respondents could not disconnect the electricity on the ground that the petitioner did not give an indemnity. 14. It is therefore, clear that proof of occupancy is required to be furnished by the petitioner and that the respondents are also required to make a physical verification and satisfy themselves. In the present case, the connection was granted by the respondents after the petitioner complied with all the formalities. 14. It is therefore, clear that proof of occupancy is required to be furnished by the petitioner and that the respondents are also required to make a physical verification and satisfy themselves. In the present case, the connection was granted by the respondents after the petitioner complied with all the formalities. In the present case, the connection has been cancelled on the sole ground that some electricity dispute was pending, which is totally erroneous. The respondents in their counter-affidavit have only stated that there is some dispute pending between the petitioner and the landlord. Thus, the basis for cancellation of the electric connection was not in existence. 15. It may also be stated here that an electric connection cannot be cancelled without first issuing a show cause notice. In the present case, no show cause notice was given. Therefore, the impugned order is also violative of the principles of natural justice. 16. In view of the aforesaid it is clear that the petitioner being an occupier of the premises in question was required to be given the electricity connection. The action of the respondents in disconnecting the electricity supply on the complaint made by the landlord was wholly illegal. 17. Accordingly, the petitioner is entitled to the relief claimed. The writ petition is allowed and the impugned order dated 8.7.2004, passed by the Sub-Divisional Officer, Naini, Allahabad, respondent No. 3, is quashed and a mandamus is issued to the respondents to restore the electricity connection in favour of the petitioner in the premises in question within a week from the date a certified copy of this judgment is produced before the respondents. However, in the circumstances of the case there shall be no order as to cost.