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2019 DIGILAW 1939 (ALL)

Husna Bano v. State of U. P.

2019-08-13

AJIT KUMAR, RAMESH SINHA

body2019
ORDER : 1. Heard Sri Muktesh Kumar Singh, learned counsel for the petitioner, Sri Baleshwar Chaturvedi, learned Counsel for the respondent nos. 3, 4 and 5, learned Standing Counsel for respondent nos. 1 and 2 and perused the record. 2. The petitioner by means of the present petition, has prayed for quashing the impugned order dated 28.06.2019 passed by respondent no. 5 whereby certain more information has been sought from the petitioner regarding her possession over the property in question as electricity connection is being sought by the petitioner. 3. The controversy has arisen on account of landlord tenant dispute between the petitioner and respondent nos. 5 to 10 on account of death of the main land-lady Rubiya Begam, w/o Azeemullah. The facts as have pleaded in the present writ petition are that on account of dispute of succession amongst the heirs who are respondent nos. 6 to 10 here in this petition, the petitioner has been under serious threat of eviction in an unauthorized way from the premises in question. Since she was a tenant for Rs. 200/- per month for the accommodation let out to her by late Rubiya Begam and the petitioner has Rashan Card and permanent Adhar Card issued on the said address, she instituted a suit for permanent injunction bearing O.S. No. 294/2019 which is pending in the court of Civil Judge (Junior Division), Aligarh. However, during the pendency of the said suit, respondents got electricity connection in the name of Rubiya Begam cancelled. This led the petitioner to apply for fresh electricity connection to her accommodation. She also submitted Indemnity Bond as per annexure 4.2 of the U.P. Electricity Supply Code, 2005, dated 25.6.2019 but instead of granting the electricity connection, she has been further directed to supply further documents of proof of possession. The notice dated 28.6.2019 does refer to certain documents like Rashan Card and Adhar Card supplied by the petitioner, however, in spite of that, the petitioner submits, she has been denied electricity connection because of the letter by the heirs of the earlier land-lady that no fresh connection be given without NOC of landlord being produced. Thus upon the said letter, the Executive Officer passed order dated 1.7.2019 refusing the fresh electricity connection to the petitioner. 4. Thus upon the said letter, the Executive Officer passed order dated 1.7.2019 refusing the fresh electricity connection to the petitioner. 4. The argument advanced by learned counsel for the petitioner is that the petitioner has filed Rashan Card and Adhar Card which themselves are proof of her possession over the premises in question and it is further submitted that since after the death of land-lady, her successors refused to accept the rent, she could not produce the rent receipt. It is further submitted that Indemnity Bond as required Annexure 4.2 of the Electricity Supply Code, 2005 is meant for such purposes where electricity connection are being sought by the tenant and NOC is not given by its landlord. 5. We have examined the relevant provisions of U.P. Electricity Supply Code, 2005 for the purposes of grant of electricity connection and we appreciate that annexure 4.2 is in respect of an intending consumer who is not owner of the premises. We however find that a person who has obtained Rashan Card and Adhar Card issued way back in the year 2016-17 is having sufficient proof at valid possession for the limited purposes i.e. grant of electricity connection. Besides above, the fact of suit for injunction being going on between the parties, at the instance of respondent is sufficient fact further to demonstrate that the premises in question is in possession of the petitioner and she is under threat of being evicted without due process of law. Providing basic necessity is the duty of the State as the electricity in modern times is basic necessity more especially when persons are residing in semi urban and urban areas. In most of the cases where there is dispute between the landlord and the tenant, the landlord can never issue no objection certificate as he intends to evict his tenant and disconnection of electricity becomes an effective tool to engineer eviction forcefully. Further there are large number of cases where still rent is being paid in cash so there is no possibility of a tenant having rent receipt. In such circumstances the question of possession whether in the capacity of tenant or otherwise becomes a question of fact to be determined by the court competent enough for the said purposes. Further there are large number of cases where still rent is being paid in cash so there is no possibility of a tenant having rent receipt. In such circumstances the question of possession whether in the capacity of tenant or otherwise becomes a question of fact to be determined by the court competent enough for the said purposes. The grant of electricity connection, since it is in the nature of basic need today, the legislature has intended to frame rules in such manner that such connections to tenants or occupiers are not denied and that is why annexure 4.2 has been prescribed for as Indemnity Bond. 6. In our considered opinion the Indemnity Bond does not become a document of title and declaration in the said bond to the effect that petitioner is lessee or otherwise in occupation in a proof of his possession. As we have already discussed herein above in this judgment that the petitioner is residing in the capacity of tenant and she has taken plea in the civil suit as well as taken plea by way of Indemnity Bond that she has filed, we find no reason for the electricity department not to grant electricity connection. The electricity connection granted under the Indemnity Bond are clearly protected by way of declaration given by the persons seeking electricity connection. Moreover, grant of electricity connection does not bar an eviction suit by the landlord. Therefore, we find no reason for the electricity department or the concerned officer to refuse electricity connection on the ground that the landlord has come up with an application that the electricity connection should not be given in the absence of no objection certificate. 7. We find support in respect of our above view in the judgment of Division Bench of this Court in the case of Gaurav Sharma Vs. State of U.P. and others (Writ-C No. 8396 of 2018 dated 18.9.2018) vide paragraph no. 9 of the judgment (supra) the Division Bench has held thus:- Further, Misc. 7. We find support in respect of our above view in the judgment of Division Bench of this Court in the case of Gaurav Sharma Vs. State of U.P. and others (Writ-C No. 8396 of 2018 dated 18.9.2018) vide paragraph no. 9 of the judgment (supra) the Division Bench has held thus:- Further, Misc. Bench No. 9588 of 2014, Smt. Sushama Chowdhary v. U.P. Power Corporation Ltd. & 4 others decided on 24.09.2014 a concurrent Bench of this Court has relied upon a judgment of Supreme Court in AIR 2011 SC 2897 , Chandu Khamaru v. Smt. Nayan Malik, wherein, Supreme Court has come to interpret sub-Section (1) of Section 41 and has held that in case of family dispute, the Electricity Act takes full care for grant of electricity connection and it ensures that nobody is deprived of electricity connection only on account of internal family dispute. The Division Bench in Sushama Chowdhary (supra) held thus: "Section 43 (1) of the Electricity Act, 20031 provides that save and otherwise provided in the Act, 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 an application requiring such supply. Section 43 (1) of the Act of 2003 casts an affirmative obligation on the distribution licensee to supply electricity on an application being moved by the owner or occupier. A corresponding entitlement or right is conferred by the statute on the owner or occupier to require a supply of electricity. This legal position is not in doubt. In Chandu Khamaru v. Smt. Nayan Malik, the Supreme Court, while interpreting the provisions of Section 43 (1) of the Act of 2003, observed as follows: "Sub-section (1) of Section 43 provides that 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. These provisions in the Electricity Act, 2003 make it amply clear that a distribution licensee has a statutory duty to supply electricity to an owner or occupier of any premises located in the area of supply of electricity of the distribution licensee, if such owner or occupier of the premises applies for it, and correspondingly every owner or occupier of any premises has a statutory right to apply for and obtain such electric supply from the distribution licensee." Again, in a subsequent part of the aforesaid decision, the Supreme Court emphasized the statutory right of an occupier and the corresponding statutory obligation on the distribution licensee to supply electricity. The Supreme Court observed as under: "...The appellant has a statutory right to apply for and obtain supply of electricity from the distribution licensee and the distribution licensee has a corresponding statutory obligation to supply electricity to the appellant." We find merit in the contention of the petitioner that the impugned order dated 2 August 2014 contains no reason for the denial of electric supply, save and except for making a reference to the provisions of Clause 4.4 of the Electricity Supply Code-20053. Clause 4.4 of the Code-2005 is in aid of the statutory duty cast by Section 43 of the Act of 2003. As a matter of fact, an Indemnity Bond, a proforma of which is contained in Annexure 4.2 of the Code-2005, deals with a situation where an occupier of the premises applies for the grant of an electricity connection, but is unable to produce the consent of the owner. Obviously, in a situation, where a dispute is between the owner and occupier (in the present case, the dispute is between members of a family), a provision has been made for furnishing an Indemnity Bond. The record would, in fact, indicate that on 21 July 2014, the petitioner had furnished an Indemnity Bond, describing herself as an occupier of the premises and said that she was unable to obtain the consent of the owner in view of the pendency of the litigation before the Court. Despite this, the Executive Engineer has acted in breach of the statutory obligation, which is cast on a distribution licensee to provide supply of electricity. Despite this, the Executive Engineer has acted in breach of the statutory obligation, which is cast on a distribution licensee to provide supply of electricity. The impugned order reveals a total non-application of mind and an unawareness of the obligation, which is cast by Section 43 of the Act of 2003 on the distribution licensee. 8. In view of the above, we are not able to sustain the order dated 1.7.2019 and accordingly we hereby set-aside the same. The matter is remitted to the authority competent to grant electricity connection and to consider the application of the petitioner on the basis of Indemnity Bond filed and the Rashan Card and the Adhar Card produced before it. Necessary positive orders and direction for providing electricity connection shall be passed, if otherwise there is no legal impediment, within a period of two weeks from the date of production of certified copy of this order. 9. The petition stands allowed as indicated above.