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2017 DIGILAW 695 (ALL)

RAJESH KUMAR SHUKLA v. STATE OF U. P.

2017-03-06

RAN VIJAI SINGH, VINOD KUMAR SRIVASTAVA III

body2017
JUDGMENT By the Court.—We have heard Shri N.N. Mishra, learned counsel for the petitioner, Shri M.P. Rai, learned counsel appearing for respondent Nos. 2, 3 and 4, Shri Shiv Ram Dubey, learned counsel for respondent Nos. 5 and 6 and learned Standing Counsel for the State respondents. 2. By means of this writ petition, a prayer has been made for issuance of a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.5.2014 passed by respondent No. 3, Executive Engineer (City), Electricity Distribution Division Ist, Gorakhpur Division, Gorakhpur, by which he has directed to disconnect the electricity connection of the petitioner, Rajesh Kumar Shukla house No. 388 with immediate effect. The aforesaid order appears to have been passed taking note of the order of this Court dated 8.2.2013 passed in Civil Misc. Writ Petition No. 54464 of 2013. 3. The facts of this case, in brief, are that the petitioner and respondent No. 6 are real brothers and respondent No. 5 is their mother. With respect to the electricity connection in house No. 388, a dispute arose in between the parties after the death of the father in the year 1998. It is the case of the petitioner that he is living alongwith his family on the ground floor of house No. 388 and his elder brother Kamlesh alongwith mother is living in two storied building bearing house No. 381. After some family arrangement, on the application of the petitioner, temporary electricity connection was provided to him in house No. 388, but that was disconnected after sometime, after the complaint of the mother and brother of the petitioner. After disconnection of the electricity connection, the petitioner approached this Court through Writ petition No. 69951 of 2009 and this Court vide order dated 22.12.2009 disposed of the writ petition with liberty to the petitioner to file representation before the Executive Engineer (City) Electricity Distribution Division, who in turn was directed to consider the representation of the petitioner. Pursuant thereto, the petitioner’s connection was restored, but again on the complaint of the mother and brother of the petitioner, the connection was withdrawn in June, 2011. Pursuant thereto, the petitioner’s connection was restored, but again on the complaint of the mother and brother of the petitioner, the connection was withdrawn in June, 2011. The petitioner again filed Writ Petition No. 75989 of 2011 on the grounds that order impugned in the writ petition was passed without giving any opportunity of hearing to the petitioner as notices were not served upon him except the notice dated 23.4.2011. 4. The stand taken by the respondents is that the connection was obtained on the basis of the false affidavit. Taking note of this, the writ petition was disposed of with liberty to the petitioner to file objections pursuant to the notices issued to him within four weeks from the date of the order and the Chief Engineer, Gorakhpur Division, Gorakhpur was directed to take appropriate decision on the same. Subject to above, the order dated 2.6.2011 was set aside and respondents were directed to give provisional electricity connection to the petitioner, which was to be subject to the final decision in the case. It is thereafter, the respondents have passed the order dated 27.9.2012 for disconnection of petitioner’s electricity connection No. 3624/109799. This order was again made subject-matter of Writ Petition No. 54464 of 2012. That writ petition was disposed of with the directions to the Chief Engineer, Gorakhpur Division, Gorakhpur to reconsider the representation in view of the observations made in the order with liberty to the respondents to provide personal hearing to parties, in case, it is required. Direction was also given for providing the provisional electricity connection to the petitioner in House No. 388. After the aforesaid order, the impugned order has been passed. 5. The order has been challenged on number of grounds. This Court while entertaining the writ petition, had granted three weeks’ time to all the respondents to file counter-affidavit. While passing the order, the Court also directed the petitioner to implead respondent Nos. 5 and 6 for whom Shri Shiv Ram Dubey has put in appearance. 6. Pursuant to the order of this Court, counter-affidavits have been filed by the respondents, i.e. private respondents as well as Electricity Department. In the counter-affidavit filed by respondent Nos. While passing the order, the Court also directed the petitioner to implead respondent Nos. 5 and 6 for whom Shri Shiv Ram Dubey has put in appearance. 6. Pursuant to the order of this Court, counter-affidavits have been filed by the respondents, i.e. private respondents as well as Electricity Department. In the counter-affidavit filed by respondent Nos. 5 and 6, it is stated that father of petitioner and respondent No. 6 was working in the office of Joint Development Commissioner, Gorakhpur Division, Gorakhpur and after his death, the brother and mother of the petitioner have given consent for appointment of the petitioner under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. Pursuant thereto, the petitioner was appointed as Clerk in the office of the Joint Development Commissioner, Gorakhpur. 7. After sometime, in the family settlement, remaining two brothers were given the old house and for petitioner House No. 39 LIG Budh Vihar was purchased. It is also being stated that petitioner has got connection in house No. 388 by misrepresenting the authority and by filing false affidavits of two witnesses namely Raj Dulare Mishra and Jagdish Mishra. It is also stated that petitioner is not living in house No. 388. 8. In the counter-affidavit filed by Electricity Department, the stand taken in the impugned order dated 21.5.2014 has been supported. 9. We have heard the learned counsel for the parties and perused the record and considered the submissions of learned counsel for the parties. 10. From perusal of the impugned order, it transpires that it has been passed by the Executive Engineer (Commercial) on behalf of the Chief Engineer (Distribution), whereas this Court has remitted the matter to respondent No. 2, Chief Engineer after setting aside the order dated 27.9.2012 in Writ Petition No. 54464 of 2012. 11. We find that the order impugned is without jurisdiction as the same has been passed by the Executive Engineer (Commercial) on behalf of Chief Engineer (Distribution), which is in the teeth of the order of this Court dated 8.2.2013. 12. Learned counsel for the petitioner, placing reliance upon the Division Bench judgment of this Court in Misc. 11. We find that the order impugned is without jurisdiction as the same has been passed by the Executive Engineer (Commercial) on behalf of Chief Engineer (Distribution), which is in the teeth of the order of this Court dated 8.2.2013. 12. Learned counsel for the petitioner, placing reliance upon the Division Bench judgment of this Court in Misc. Bench No. 9588 of 2014 (Smt. Sushma Chowdhary v. U.P. Power Corporation Ltd. through Chairman and others) decided on 24.9.2014, submits that in view of Section 43 (1) of the Electricity Act, 2003, respondent-Authority was bound to give electricity connection to occupier, but here the application has been rejected totally on irrelevant grounds that the owner has not consented for providing the connection. 13. Here we refrain ourselves from making any observations on the merits of the order impugned for the simple reason that the order impugned is patently illegal and without jurisdiction as the same has been passed contrary to the directions of this Court dated 8.2.2013 passed in Writ Petition No. 54464 of 2012. 14. Learned counsel appearing for the Electricity Department could also not justify the impugned order showing the provisions considering which impugned order has been passed by the Executive Engineer contrary to the directions of this Court. There is also no whisper about the delegation of the power. Otherwise also had there been any delegation, that too could not be delegated to the Executive Engineer contrary to the directions of this Court. It is well-settled that an order without jurisdiction is a nullity and no legal consequences can flow such orders. Reference may be made to the decisions of the Apex Court in Managing Director, Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd., (2004) 9 SCC 619 , Sarup Singh and another v. Union of India and another, (2011) 11 SCC 198 and a Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and another v. State of U.P. and others in Special Appeal No. 164 of 2012 decided on 25.1.2012. 15. In the result, the writ petition succeeds and is allowed. 15. In the result, the writ petition succeeds and is allowed. The impugned order dated 21.5.2014 passed by respondent No. 3, Executive Engineer (City), Electricity Distribution Division Ist, Gorakhpur Division, Gorakhpur is quashed with the direction to the Chief Engineer, respondent No. 2 to pass a fresh order in accordance with the observations made in the order dated 8.2.2013 passed in Writ Petition No. 54464 of 2012 and the statutory provisions contained in the U.P. Electricity Act, 2003 and the Division Bench decision of this Court dated 24.9.2014 passed in Misc. Bench No. 9588 of 2014 expeditiously not later than two months from the date of receipt of certified copy of this order. 16. Considering the facts that earlier on two occasions, i.e. by orders dated 3.1.2012 passed in Writ Petition No. 75989 of 2011 and 8.2.2012 passed in Writ Petition No. 54464 of 2012, there were orders for providing temporary connection during the pendency of the representation, we also provide that temporary connection be provided to the petitioner within a week from the date of receipt of a certified copy of this order. 17. Learned counsel for the petitioner is at liberty to file certified copy of this order before the Executive Engineer, respondent No. 3. Shri M.P. Rai, who appears for the Electricity Department is also directed to communicate this order to the concerned Executive Engineer. However, temporary connection provided to the petitioner shall be subject to the final order passed by the Chief Engineer.