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2018 DIGILAW 1580 (HP)

Surender Kumar v. H. P. State Electricity Board Ltd.

2018-08-31

SANJAY KAROL, VIVEK SINGH THAKUR

body2018
JUDGMENT : Vivek Singh Thakur, J. Petitioner, by way of present writ petition, has approached this Court seeking writ of mandamus directing the respondents, i.e. H.P. State Electricity Board and Municipal Council, Mandi, to provide electricity connection to him. 2. Case of the petitioner is that he, alongwith his family, is residing in double storeyed house-cum-shop constructed upon land comprised in khasra No. 795/757/1, 795/757 and 752/1, measuring 32.85 sq. mtrs., situated in Mohal Paddal, Tehsil Sadar, District Mandi, H.P. and he was holder of Electricity Meter No. PM-410, which was disconnected, whereupon he had applied for reconnection on 29th December, 2015, but, it was not reconnected, rather, another electricity connection, provided to the petitioner, was also disconnected. 3. It has been averred in the writ petition that on 20th April, 1990, petitioner had preferred a civil suit against Administrator, Mandi Municipal Committee, with respect to the land mentioned supra, which was decreed in his favour on 3rd February, 1992, passing a decree for permanent prohibitory injunction qua the said land against the defendant therein; the said judgment and decree was not assailed further and has attained finality. It has further been averred that the electricity connection has been disconnected by the respondents for want of No Objection Certificate issued by respondent No. 3-Municipal Council. Also, that the petitioner is running a shop in the ground floor of the building to earn his livelihood, but, the respondents are not providing electricity to him intentionally and deliberately causing great hardship to him despite the fact that petitioner is ready and willing to deposit the requisite charges of reconnection of electricity meter, which has wrongly been disconnected without issuing any notice to the petitioner, resulting into depriving him of basic amenities of life whereas there is no default in making payment of electricity bill and other charges on the part of petitioner. 4. It is also pleaded that in any case, if respondent No. 3 is desirous to demolish the construction raised by the petitioner on the land in question, a civil suit is necessary to be instituted. According to petitioner, respondent-Board, once upon, had agreed to install electricity connection without obtaining No Objection Certificate, but, despite that, connection has not been provided till date. According to petitioner, respondent-Board, once upon, had agreed to install electricity connection without obtaining No Objection Certificate, but, despite that, connection has not been provided till date. Lastly, it has been alleged that respondents are discriminating the petitioner as so many similarly situated persons have been provided electricity connection and one Smt. Sheela Devi has also been provided connection on order passed by this High Court. 5. Respondent No. 3-Municipal Council, rebutting the claim of the petitioner, in their reply, have contended that that the petitioner has not placed true facts before this Court and as a matter of fact, petitioner is an encroacher over the suit land as the land comprised in khasra No. 795/757/1, 795/757 and 752/1, measuring 32.85 sq. mtrs., owned by State of Himachal Pradesh, has been encroached upon by the petitioner by erecting two storeyed building without permission of Municipal Council. Judgment and decree, dated 3rd February, 1992, passed in favour of the petitioner, has not been disputed, but, it has been stated that at that time, the petitioner had constructed only single storeyed shop on the land in question and electricity connection was obtained by him by misrepresentation. 6. It is further case of respondent No. 3-Municipal Council that after having knowledge of encroachment, on institution of ejectment proceedings against the petitioner, Assistant Collector First Grade, Tehsil Sadar, Mandi, had passed ejectment order, dated 23rd June, 1993 (Annexure R-3/1) with respect to land comprised in khasra No. 795/757/1, measuring 21.25 sq. mtrs. and khasra No. 796/757/2 and 752/1, measuring 11.60, with fine of Rs. 1,000/-, but, the petitioner, instead of vacating the land in question, started encroachment over the adjoining land wherefrom he was again ordered to be ejected by the Assistant Collector First Grade, vide order, dated 21st January, 1995 (Annexure R-3/2). Despite passing of ejectment orders, dated 23rd June, 1993 and 21st January, 1995 (supra), the petitioner further encroached upon another piece of adjoining land comprised in khasra No. 1016/795/757/3, measuring 208.09 sq. mtrs., situated in Mohal Paddal, wherefrom also, he was ordered to be ejected by Assistant Collector First Grade vide order, dated 18th January, 2016, with fine of 50,000/- (Annexure Rs. R-3/3). 7. mtrs., situated in Mohal Paddal, wherefrom also, he was ordered to be ejected by Assistant Collector First Grade vide order, dated 18th January, 2016, with fine of 50,000/- (Annexure Rs. R-3/3). 7. It has further been contended on behalf of respondent No.3-Municipal Council that petitioner, being a habitual encroacher, has also encroached upon acquired/controlled width of NH-21, for which a notice, dated 19th October, 2015 (Annexure R3/4) to remove the encroachment has been served upon him by Assistant Engineer, NH Sub-Division HPPWD Pandoh. 8. Lastly, it has been contended that for compliance of various orders passed by this High Court from time to time, respondent No. 3, i.e. Executive Officer, Municipal Council, Mandi, had issued notice, dated 7th December, 2015 (Annexure R-3/5) to petitioner to restore the land condition and stop the construction, but, the petitioner did not comply with the notice and ultimately, letter, dated 21st December, 2015 (Annexure R-1/D), issued under compelling circumstances by respondent No. 3, resulted into disconnection of the petitioner and now, new connection applied by the petitioner could not be granted for unauthorized construction. 9. Respondents No. 1 and 2 have filed a separate reply stating therein that respondent-Board had installed two electricity meters, one of which was in the name of petitioner-Surender Kumar whereas another was in the name of Smt. Anita (wife of petitioner), and on receiving several requests from Assistant Engineer, National Highway Sub-Division, HPPWD, Pandoh (Annexure R-1/A), Executive Engineer, National Highway Division, HPPWD, Pandoh (Annexure R-1/B), Executive Officer, Municipal Council, Mandi (Annexure R-1/C), Tehsildar, Tehsil Sadar, Mandi (Annexure R-1/D) and judgment and order passed by Assistant Collector First Grade, Tehsil Sadar, Mandi (Annexure R-1/E), the respondent-Board had issued notice/intimation, dated 7th December, 2015 (Annexure R-1/F) to the petitioner-Surender Kumar and his wife Anita Kumari directing to settle the matter with the concerned department within fifteen days. The said notice was delivered upon them on 11th December, 2015 at 3.30 p.m. For receiving no response/reply from the petitioner, respondent-Board temporarily disconnected their connection. However, petitioner and his wife did not respond despite temporary disconnection, which resulted into permanent disconnection on 29th December, 2015, with intimation to Tehsildar, Sadar, Mandi, vide letter, dated 18th January, 2016 (Annexure R-1/G). 10. However, petitioner and his wife did not respond despite temporary disconnection, which resulted into permanent disconnection on 29th December, 2015, with intimation to Tehsildar, Sadar, Mandi, vide letter, dated 18th January, 2016 (Annexure R-1/G). 10. It has further been contended on behalf of respondents No. 1 and 2 that the letters (Annexures R-1/A, R-1/B and R-1/C), were addressed to petitioner-Surender Kumar, copies whereof were endorsed to officers/officials of respondent-Board requesting for disconnection of electricity connection. Order, dated 22nd December, 2015 (Annexure R-1/E), passed by Assistant Collector First Grade directing the Executive Engineer of the respondent-Board to disconnect the electricity connection, was passed in a case instituted against the petitioner and despite having the knowledge of aforesaid notices/letters issued for disconnection, he has not disclosed all these facts in the petition and has not come to the Court with clean hands withholding and concealing the material information and facts. 11. Lastly, it has been stated that electric connection to one Sheela Devi, was provided on the direction/order (Annexure R-1/J) passed by this Court in CWP No. 2667 of 2017, titled Sheela Devi versus HPSEBL and others. 12. Passing of judgment and decree, dated 3rd February, 1992 with respect to land comprised in Khasra No. 795/757/1, 795/757/2 and 752/1, measuring 32.85 sq. mtrs, situated in Mauja Paddal, District Mandi, is not in dispute, however, perusal of the judgment unambiguously indicates that the suit filed against Administrator ADM, Mandi Municipal Committee, seeking permanent prohibitory injunction against demolition of the shop vide notice No. 417, dated 27th March, 1990, issued under Section 207 of H.P. Municipal Act, 1968, was decreed in favour of the petitioner on the ground that the Municipal Council had failed to establish that the said demolition notice was delivered to petitioner within six months from completion of the building, as required under law. Therefore, suit of petitioner for permanent prohibitory injunction qua the suit land was decreed for noncompliance of provisions of law mandatory to follow for issuing demolition notice under Municipal Act. Therefore, suit of petitioner for permanent prohibitory injunction qua the suit land was decreed for noncompliance of provisions of law mandatory to follow for issuing demolition notice under Municipal Act. Thus, judgment and decree is of no help to the petitioner and it does not restrain the Municipal Council or other authorities to initiate fresh proceedings for his ejectment, in accordance with law, to remove the unauthorised possession and also from pursuing the ejectment proceedings initiated before the Assistant Collector First Grade under Section 163 of the H.P. Land Revenue Act, prior to or after passing of the decree and asking the respondent-Board to disconnect the electricity connection on account of ejectment order passed against him and also does not prohibit the respondent-Board from disconnecting the electricity meter on the request of concerned competent authority exercising power on behalf of the State of Himachal Pradesh, the owner of the land in question. 13. As evident from the material placed on record by respondents, petitioner has not come to the Court with clean hands. Vide order, dated 23rd June 1993 (Annexure R-3/1), he was evicted from the land in question by the Assistant Collector First Grade. Perusal of this order indicates that at that time, he had constructed a kiosk in Khasra No. 795/757, measuring 21.25 sq. mtrs., using another 11.60 sq. mtrs., comprised in Khasra No. 795/757 and 752/1 as courtyard (Sehan). From order dated 20th January 1995 (Annexure R-3/2), it is established that instead of complying with previous eviction order, petitioner continued to raise further construction, which resulted into initiating another proceedings for eviction and passing of the said order (Annexure R-3/2). Petitioner did not stop here, but, continued to raise further unauthorised construction resulting into passing of third eviction order, dated 18th January, 2016 (Annexure R-3/3), wherein a request was also made to Executive Engineer (Electricity) and Executive Engineer (I&PH) to disconnect the electricity and water connections of the petitioner. Copy of this order was forwarded to Assistant Engineer (Electricity) on 24th February, 2016 by Senior Executive Engineer, HPSEB for necessary action. Copy of this order was forwarded to Assistant Engineer (Electricity) on 24th February, 2016 by Senior Executive Engineer, HPSEB for necessary action. But, prior to passing of order, dated 18th January, 2016 (Annexure R-1/E) by Assistant Collector First Grade, a notice, dated 15th October, 2015, was issued by Assistant Engineer, NH Sub-Division, HPPWD, Pandoh, to the petitioner directing him to stop unauthorized construction/encroachment in acquired/controlled width on NH-21 at Km 200/890-905 with endorsement of the said notice to Executive Engineer, HPSEB Ltd. Division Mandi, requesting him to disconnect electricity connection of the petitioner, whereupon the Senior Executive Engineer, on 2nd November, 2015, further directed Assistant Engineer, HPSEB to submit fact finding report. Thereafter, another notice, dated 19th October, 2015 (Annexure R-1/B) was issued by Executive Engineer, NH Division HPPWD, Pandoh, to the petitioner to stop unauthorized construction on PWD land at Km-200/890 to 200/905 till demarcation is conducted by Revenue Department. This notice was also endorsed to Executive Engineer, HPSEB with request to disconnect electricity connection of the petitioner. This notice/letter was also sent to Assistant Engineer, HPSEB on 2nd November, 2015 with letter Annexure R-1/A. Similarly, a notice, dated 7th December, 2015 (Annexure R-1/C) was issued to petitioner by Executive Officer, Municipal Council, Mandi for raising construction without permission with endorsement to Executive Engineer, HPSEB/I&PH to disconnect electricity/water connections, which was further sent to Assistant Engineer (HPSEB) also by Senior Executive Engineer, HPSEB on 9th December, 2015. Respondent-Board, even after receiving numerous requests from the concerned authorities, has not disconnected his meter without notice, but, petitioner has been duly informed vide notice dated 7th December, 2015 (Annexure R-1/F) with request to settle the matter with Executive Engineer, NH Division, HPPWD, Pandoh within fifteen days and initially electricity supply was disconnected temporarily and on receiving no response for fifteen days, the connection was permanently disconnected on 29th December, 2015, after giving ample opportunity to the petitioner. In the meanwhile, Tehsildar Sadar, Mandi, on the basis of previous eviction orders, dated 23rd June, 1993 and 20th January, 1995, had also issued direction to disconnect water/electricity connections of the petitioner vide letter, dated 21st December, 2015 (Annexure R-1/D). 14. Petitioner has alleged that respondent-Board is providing electricity connection to similarly situated persons, including one Sheela Devi. In the meanwhile, Tehsildar Sadar, Mandi, on the basis of previous eviction orders, dated 23rd June, 1993 and 20th January, 1995, had also issued direction to disconnect water/electricity connections of the petitioner vide letter, dated 21st December, 2015 (Annexure R-1/D). 14. Petitioner has alleged that respondent-Board is providing electricity connection to similarly situated persons, including one Sheela Devi. In response to it, respondent-Board has placed on record order, dated 21st December, 2017 (Annexure R-1/J), passed by this Court in CWP No. 2667 of 2017 wherein at the time of issuance of notice to respondents, following order has been passed: “Response be positively filed within a period of ten days. In the meanwhile, with the petitioner's depositing the amount of arrears, pending consideration of the writ petition, respondents shall reenergize the electricity connection of the petitioner. Petitioner undertakes to clear all arrears by tomorrow. List on 3.1.2018.” 15. It is clear from the perusal of the aforesaid order that reenergizing of the electricity connection of Sheela Devi, vide this order, was an interim order subject to depositing the amount of arrears, but, pending consideration of writ petition and this was necessarily required to be confirmed on final disposal. This order nowhere suggests that this Court had ever directed the respondent-Board to continue with the electricity connection after disposal of the writ petition even in absence of confirmation of the said order, if not permissible to be continued under law. We have enquired about the fate of said CWP No. 2667 of 2017, whereupon it transpires that on 3rd January, 2018, the said writ petition was disposed of as not pressed. Order dated 3rd January, 2018, passed in the writ petition reads as under: “In view of intervening developments, more so, for the reason that the electricity connection stands energized, learned counsel for the petitioner, under instructions, does not press the present petition. As such, present petitions stands disposed of as not pressed alongwith pending applications, if any.” 16. Vide order dated 21st December, 2017, reenergizing of the electricity connection of Smt. Sheela Devi was ordered pending consideration of the writ petition and next date was fixed for 3rd January, 2018. On 3rd January, 2018, statement was made by learned counsel for the petitioner therein that in view of the intervening developments, more so, for the reason that electricity connection stands energized, he has instructions not to press the petition. 17. On 3rd January, 2018, statement was made by learned counsel for the petitioner therein that in view of the intervening developments, more so, for the reason that electricity connection stands energized, he has instructions not to press the petition. 17. Therefore, it is wrong to suggest that there was any order passed in favour of Smt. Sheela Devi (petitioner in CWP No. 2667 of 2017) to continue her electricity connection even after disposal of the writ petition, if otherwise it was not to be continued under law. Thus, respondent-Board is also directed to deal with the case of said Sheela Devi, in accordance with law, without being influenced by interim order, dated 21st December, 2017, passed by this Court, which was in force pending consideration of the writ petition as at the time of final disposal, such direction was not continued. 18. Respondent-Board may continue the said electricity connection, if permissible, but, not under the garb of interim order, dated 21st December, 2017 (supra), which is nonexistent after final disposal of the main writ petition. 19. It is clear from the discussion made hereinabove that this Court has not ordered to continue any illegal connection in favour of any person, including Smt. Sheela Devi, petitioner in CWP No. 2667 of 2017. Moreover, continuation of an illegal connection by respondents in favour of any person does not entitle the petitioner to continue his electricity connection in the premises constructed upon the land encroached by him belonging to the State of Himachal Pradesh. Respondents should deal with all connections provided to unauthorized constructions/buildings raised encroaching upon the Government land in similar fashion. Respondents should give equal treatment to all similarly situated persons without favouring any encroacher. 20. In the facts and circumstances of the case, petitioner deserves to be burdened with costs, however, we are refraining from passing any such order. 21. In view of above discussion, with aforesaid observations required to be complied with by the respondents, present writ petition is dismissed being devoid of merit. Pending applications, if any, also stands disposed of accordingly.