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Gujarat High Court · body

2017 DIGILAW 1425 (GUJ)

Kanubhai Jethabhai Rohit v. State of Gujarat

2017-08-31

RAJESH H.SHUKLA

body2017
JUDGMENT : 1. Rule. 2. The present petition is filed by the petitioners under Articles 14, 21 and 226 of the Constitution of India as well as under the Gujarat Electricity Regulation Commission (Electricity Supply Code and Related Matters) Regulations, 2015 for the prayers inter alia that appropriate writ, order or direction may be issued for quashing and setting aside the order passed in Case No. 102/2016 by the Electricity Ombudsman, Gujarat State and also for the prayer that Respondent Nos. 2 and 3 – Madhya Gujarat Vij Company Limited may be directed to provide electricity connection for the residential plots belonging to the petitioners situated at village Sayajipura, Vadodara on the grounds stated in the memo of petition. 3. Heard learned Advocate Shri A.V. Nair for the petitioners, learned AGP Ms. Jyoti Bhatt for the Respondent State and learned Advocate Shri Rituraj M. Meena for Respondent Nos. 2 and 3 – Madhya Gujarat Vij Company Limited. 4. Learned Advocate Shri Nair referred to the background of the facts and submitted that the petitioners, who are the owners of the plots in question have applied for electricity connection for the residential purpose which has been denied. Learned Advocate Shri Nair has referred to the impugned order passed by the Electricity Ombudsman. He also submitted that the applications dated 21.10.2015 were made. However, their applications came to be rejected vide order dated 16.7.2016. He also referred to the background of the facts and submitted that the petitioners are having right to get electricity connection and that the Respondents cannot deny arbitrarily as they are the licensee under the Electricity Act obliged with certain duties and obligations. He submitted that the electricity is a necessity, and therefore, they have a fundamental right to get electricity connection, which is a part of right to life under Article 21 of the Constitution of India. He submitted that the electricity is a necessity, and therefore, they have a fundamental right to get electricity connection, which is a part of right to life under Article 21 of the Constitution of India. He also referred to the Supply Code and pointedly referred to Clause 4.16 and submitted that it provides: “Any of the following documents shall be considered as acceptable proof of ownership or occupancy of premises: (1) Copy of registered sale deed or lease deed or in the case of agricultural connections a copy of 7/12, 8-A and hakk patrak (6-A); (2) Latest Municipal tax receipt or Demand notice or any other related document; (3) Letter of allotment; (4) Ownership Certificate issued by village level Government functionary; (5) An applicant who is not an owner but an occupier of the premises shall, along with any one of the documents listed at (1) to (3) above, also furnish a No Objection Certificate from owner of the premises except lease holder where long lease is granted for premises. Where the NOC from the owner of the premises is not available due to any reasons, new connection be allowed on the basis of submission of indemnity bond prescribed by the Distribution Licensee to indemnity the Distribution Licensee against losses on account of disputes that may arise out of effecting service connection to him.” 5. Learned Advocate Shri Nair Submitted that sub-Clause (5) of Clause 4.16 referred to the fact that the petitioners, who are not the owner but occupier earlier get the supply of electricity with one of the documents as stated therein. He submitted that the no objection from the erstwhile owner has been now available which came to be produced and therefore there should not be any reservation for supply of electricity for domestic purpose. It is submitted that the supply of electricity is declined on extraneous consideration that the documents of ownership or the title are not produced and there are some revenue proceedings pending. 6. Learned Advocate Shri Nair has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Shri Chandu Khamaru v. Smt. Nayan Malik and Ors. reported in AIR 2011 SC 2897 . 6. Learned Advocate Shri Nair has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Shri Chandu Khamaru v. Smt. Nayan Malik and Ors. reported in AIR 2011 SC 2897 . He pointedly referred to the observations made in paragraph 10 and submitted that as observed, the Respondents as an authority also have a corresponding statutory obligation to supply of electricity under the Electricity Act and the persons like the petitioners have a right to ask for supply of electricity. He submitted that it is a statutory right to apply for and obtain the supply of electricity from the licensee and the corresponding obligation for supply of electricity is cast by the Act upon such licensee. He therefore submitted that as observed in this judgment, for the disputes between the parties, supply cannot be declined. In the facts of that case, it was between the two individuals whereas in the facts of the case it is claimed that tenancy proceedings are pending and therefore the supply is denied. Learned Advocate Shri Nair has also referred to and relied upon the judgment of the High Court (Coram: N.V. Anjaria, J.) in case of Vasava Virsing Himatbhai v. Indian Oil Corporation and Ors. reported in (2016) 2 GLR 1747 and submitted that in that case also, referring to the Electricity Act and the Supply Code, the observations have been made. He emphasized the observations made in paragraph 8 : “In Chandu Khamaru vs. Nayan Malik and ors. [ (2011) 12 SCC 314 ], the Supreme Court held that in view of subsection (1) of Section 42, every distribution licencee has a duty to develop and maintain distribution system in his area of supply and to supply electricity in accordance with the provisions of the Act and further that subsection (1) of Section 43 casts a statutory duty on the distribution licencee to supply electricity to an owner or occupier of any premises located in the area of supply of electricity of such licencee, if such person applies for the same. In other words, a corresponding right is on the owner or occupier of the premises to obtain such electricity supply from the licencee.” Learned Advocate Shri Nair therefore submitted that the present petition may be allowed and the and appropriate direction may be given for supply of electricity. 7. In other words, a corresponding right is on the owner or occupier of the premises to obtain such electricity supply from the licencee.” Learned Advocate Shri Nair therefore submitted that the present petition may be allowed and the and appropriate direction may be given for supply of electricity. 7. Learned Advocate Shri Rituraj M. Meena appearing for Respondent Nos. 2 and 3 – Madhya Gujarat Vij Company Limited - the licensee has referred to the affidavit-in-reply in the main matter i.e. Special Civil Application No. 18969 of 2016. He pointedly referred to the background of the facts and submitted that the petition is bad for non-joinder of necessary party as the original owner has not been joined. Similarly he has submitted that no proof of ownership has been produced. He further submitted that the unregistered sale deed on a stamp paper of Rs.100/- is not a acceptable proof of ownership according to the Gujarat Electricity Regulatory Commission (GERC) Electricity Supply Code and Related Matters (Regulation) 2015. He also submitted that there are limitations with Respondent Nos. 2 and 3. Learned Advocate Shri Meena has also referred to Clause 4.16 of the Supply Code and submitted that the necessary documents with regard to the ownership is not available, and therefore, they are not in a position to supply the electricity. 8. Learned Advocate Shri Meena has also submitted that the land has been vested with the government and for the violation of Section 43 of the Tenancy Act read with Section 73AA of the Land Revenue Code, the proceedings are pending, and therefore, the petitioners cannot claim supply of electricity as the land belongs to the State. Learned Advocate Shri Meena has therefore submitted that the present petition along with Civil Application may not be entertained. 9. Learned AGP Ms. Jyoti Bhatt has referred to the Supply Code and has also referred to the background of the facts submitting that the tenancy proceedings are pending and the ownership is not established by the petitioners. He submitted that the proceedings under the Gujarat Land Revenue Code are also initiated and pending and therefore the supply may not he provided. 10. In view of the rival submissions, it is required to be considered whether the present petition along with Civil Application deserve consideration. 11. He submitted that the proceedings under the Gujarat Land Revenue Code are also initiated and pending and therefore the supply may not he provided. 10. In view of the rival submissions, it is required to be considered whether the present petition along with Civil Application deserve consideration. 11. As could be seen from the background of the facts, the petitioners have claimed supply of electricity for domestic consumption and Respondent Nos. 2 and 3 are the licensee under the Electricity Act 2003. The preamble of the Electricity Code and Related Matters regulations 2015 provide : “In exercise of powers conferred under Section 181(2)(x) read with Section 50 of the Electricity Act 2003 (Act 36 of 2003) and under Section 42(1)(b) of the Gujarat Electricity Industry (Reorganization and Regulation) Act, 2003 (Gujarat Act 24 of 2003), and all powers enabling it in that behalf, the Gujarat Electricity Regulatory Commission hereby makes this “Electricity Supply Code and Related Matters” Regulations herein after called supply Code.” 12. The reliance placed by learned Advocate Shri Meena on Clause 4.16 of the Supply Code contending that the land does not belong to the petitioners and the tenancy proceedings are pending is required to be considered in background of the provisions regarding the supply of electricity and Supply Code. One of the issue with regard to the ownership of the land which is sought to be raised is not supported in view of the provisions in the Supply Code itself. A close look at Clause 4.16 as recorded herein above specifically referred to the documents which are considered as acceptable for the proof of ownership or occupancy. Similarly, Sub-Clause 5 of Clause 4.16 specifically provide that if the person is not the owner but an occupier, he may submit one of the documents referred to therein. Meaning thereby, it is not necessary that only the owner of the land or the occupier can claim connection. If such a interpretation is sought to be made, it is misreading the statutory provisions made in exercise of statutory power as stated herein above. When the Supply Code itself refers to the occupancy also, meaning thereby the issue with regard to the ownership of title is not relevant and even if the person is not the owner, but if he is occupying, he will claim the supply of electricity as a matter of right. When the Supply Code itself refers to the occupancy also, meaning thereby the issue with regard to the ownership of title is not relevant and even if the person is not the owner, but if he is occupying, he will claim the supply of electricity as a matter of right. It is required to be stated that Respondent Nos. 2 and 3 as a licensee under the Electricity Act are also having an obligation statutorily cast upon them and the statement of objects and reasons of the Electricity Act 2003 clearly provide that the Electricity (Supply) Act 1948 mandated the creation of a State Electricity Board which has the responsibility of arranging the supply of electricity in the State. Thereafter the performance of the State Electricity Board is deteriorated. The Private Sector was encouraged for participation and a State Electricity Regulatory Commission has been set up. Thus, the ultimate object is generation, transmission as well as distribution of electricity for development and also for the interest of the consumers who are the citizens of the country. Therefore, Respondent Nos. 2 and 3 having a role as licensee cannot be permitted to have such a slipshod and narrow view for the purpose of electricity contending that the proceedings are pending and therefore supply of electricity even for domestic purpose could be declined. It is required to be stated that assuming that there is a genuine dispute pending, including either between the two parties under the Tenancy Law with regard to the tenancy rights and the other issues under the Bombay Land Revenue Code, even then, till such issues are decided, can it be said that the persons who are in possession and occupation would not get the supply of electricity. It is required to be stated that in many cases, where there is a dispute between the landlord and the tenant, the tenant is harassed and therefore the word ‘occupation’ has been used that even if the person is not the owner but the occupant can claim the supply of electricity. Similarly, even a judicial notice of the fact could be taken that in the residential houses made by the authority like housing board, the people in occupation are different than the legitimate owners, the supply of electricity cannot be denied. Similarly, even a judicial notice of the fact could be taken that in the residential houses made by the authority like housing board, the people in occupation are different than the legitimate owners, the supply of electricity cannot be denied. Therefore, the necessary framework has been created and the Electricity Act has been amended after it has been reviewed by the government. As per commitment made by National Common Minimum Program, Respondent Nos. 2 and 3 as a licensee are obliged to cater to the needs of the consumers. The consumers like petitioners, who are seeking electricity cannot be denied electricity and the hostile attitude adopted by Respondent Nos. 2 and 3 cannot be readily accepted. It is not only unfortunate but shameful that in a country with democracy, where the people have got a fundamental right, have to claim and fight a litigation for supply of domestic electricity though it would also form a right to life under Article 21. It does not require any elaborate submission that right to life under Article 21 will have a different facet and in modern days it may not be possible to survive without the supply of electricity inasmuch as the children may be studying, senior citizens may be sick. On the one hand when right to education is sought to be made compulsory and on the other hand such a hostile attitude by Respondent Nos.2 and 3 as a licensee asking for proof of ownership has no excuse to deny the supply of electricity. 13. The Hon'ble Division Bench in Letters Patent Appeal No. 91 of 2010 has observed : “It is not in dispute that electricity company is required to provide electrical connection to consumers and not to a premises. Such connections are given at the place whether it is a residential building or agricultural land or vacant land etc. It has nothing to do with legality and propriety of possession. Counsel appearing on behalf of electricity company is not in a position to reply as to how the question of legality and propriety of ownership and occupancy of premises had any nexus with object to be achieved……...........................................” 14. Therefore, it is not within the right of Respondent Nos. It has nothing to do with legality and propriety of possession. Counsel appearing on behalf of electricity company is not in a position to reply as to how the question of legality and propriety of ownership and occupancy of premises had any nexus with object to be achieved……...........................................” 14. Therefore, it is not within the right of Respondent Nos. 2 and 3 to examine about the claim regarding ownership or the title when their own Supply Code covers both; the ownership or the occupation for the purpose of supply of electricity. Therefore, the stand is dehors their own statutory regulations. Again, as stated above, it is not in dispute that the petitioners are having occupation of the land in question. Even if the possession is doubted, the legality and propriety of such possession or occupancy of the premises is a matter to be decided in appropriate forum and merely to say that the tenancy proceedings are pending and the land is said to have been vested with the government, it is again a subject matter of adjudication before the authority. It could not be conclusively assumed by Respondent Nos. 2 and 3 that the land belongs to the government and no supply of electricity could be given. Therefore, any such submissions are dehors the statutory provisions including the Supply Code and therefore the present petition deserves to be allowed and accordingly stands allowed. Prayer in terms of paragraph 7(B) is granted. The order passed in Case No. 102/2016 by the Electricity Ombudsman, Gujarat State is hereby quashed and set aside with a further direction to Respondent Nos. 2 and 3 – Madhya Gujarat Vij Company Limited to provide electricity connection for the respective plots situated over the land bearing Block/Survey No. 15/K in village Sayajipura, Vadodara on usual terms on execution of the necessary indemnity bond as required as per Clause 4.16 (5) of the Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2015 within a period of four weeks. 15. It is clarified that if there is any lapse, it would be viewed seriously for any excuse including the so-called permission from the State. 16. The present petition along with Civil Application No. 11189 of 2017 is allowed. Rule is made absolute.