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2023 DIGILAW 486 (ALL)

Anand Kumar v. State Of U. P.

2023-02-17

ANISH KUMAR GUPTA, SURYA PRAKASH KESARWANI

body2023
JUDGMENT : Anish Kumar Gupta, J. 1. Heard Sri Prashant Pandey, learned counsel for the petitioner, learned Standing Counsel for the State respondent no.1 and Sri Udit Chandra, learned counsel for the respondents no.2 and 3. 2. Learned counsel for the petitioner submits that the petitioner is tenant of a small shop measuring 7’4’’ x 7’ in House No. CK-48/207 Rehmat Market, Hadha Saray, Varanasi. It is alleged that he is tenant of the aforesaid shop since 1997 and he uses alternative sources of energy. Now, he wants an electric connection and for that purpose moved an application on 22.2.2022 before the respondent no.3 for electric connection in the aforesaid premises, but the respondents are not granting electric connection on the pretext that there are certain dues in respect of the building in which the shop of the petitioner is situated. 3. Aggrieved with the non-grant of electricity connection by the respondents, the petitioner has filed the present writ petition praying for the following relief:- “i. issue, a writ, order or direction in the nature of mandamus directing the respondent no.3 to provide the electricity connection in the shop of the petitioner i.e. Shop at CK-48/207 Rehmat Market, Hadaha Saray, Varanasi in accordance with the provisions.” 4. Learned counsel for the respondents no.2 and 3 submits that since there are dues with respect to the building in question, therefore, no new electric connection can be granted for the shop occupied by the petitioner. 5. Learned counsel for the petitioner submits that there are no electricity dues either against the petitioner or in respect of premises in question i.e. shop occupied by the petitioner, therefore, there is no legal impediment to grant new electric connection to the petitioner. 6. We have carefully considered the submission of learned counsel for the parties. 7. 5. Learned counsel for the petitioner submits that there are no electricity dues either against the petitioner or in respect of premises in question i.e. shop occupied by the petitioner, therefore, there is no legal impediment to grant new electric connection to the petitioner. 6. We have carefully considered the submission of learned counsel for the parties. 7. We find that para 4.1 of the Uttar Pradesh Electricity Supply Code, 2005 (hereinafter referred to as "the Code, 2005") provide for grant of supply of electricity, which is reproduced below:- “CHAPTER 4 PROCEDURE FOR GRANT OF SUPPLY 4.1 Licensee’s Obligation to Supply : The Licensee shall on an application by the owner or occupier of any premises, located in his area of supply, give supply of electricity to such premises within the one month after receipt of completed application showing payments of necessary charges and other compliances : Provided also in case of application for supply from a village or hamlet or areas wherein no provision for supply of electricity exists, the Commission shall extend the time period for provision of supply appropriately on a case-to-case basis: Provided further that, in case of arrears of electricity dues in respect of any of old consumers / premises where ownership has changed, the new connection shall be released to the new owners only after submission of No-Dues Certificate as provided in clause 4.3(f): and Provided that, if there are arrears of electricity dues on a premises, a new connection shall not be released to a new applicant/ or the old consumer on the same premises. The connection shall also not be released if— (i) The applicant (being an individual) is an associate or relative (as defined in Section 2 and 6 respectively of the Companies Act, 1956) of the defaulting consumer, (ii) Or where the applicant being a company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person, is controlled, or having controlling interest in the defaulting consumer, provided, the Licensee shall not refuse electric connection on this ground, unless an opportunity to present his case is provided to the applicant and a reasoned order is passed by an officer as designated by the licensee.” 8. Learned counsel for respondent nos. Learned counsel for respondent nos. 2 and 3 has heavily relied upon the third proviso to para 4.1 of the Code, 2005 and submits that since there are electricity dues on the premises i.e. the building in question, therefore, no new connection can be granted with respect to the shop occupied by the petitioner. 9. We find that the submissions made by learned counsel for the respondent nos.2 and 3 is totally misplaced. 10. The word “Occupier” and the word “Premises” have been defined in para 2(oo) and para 2(ss) of the Code, 2005 as under:- “(oo) “Occupier” means the owner or authorised person in occupation of the premises where energy is used or proposed to be used. (ss) “Premises” means the area / portion of the building / shed / field etc., for which, the electric connection has been applied for or sanctioned for a single consumer.” 11. Restriction on a new electric connection on account of dues in respect of the same premises, has been provided in the third proviso to para 4.1 of the Code, 2005. The word "premises" has been defined in Section 2(ss) of the Code, 2005, that premises is an area/portion of the building/shed/field etc., for which the electric connection has been applied for or sanctioned for a single consumer. Thus, the shop occupied by the petitioner is a premises within the meaning of para 2(ss) of the Code, 2005, and if the petitioner is a tenant of the shop then he being a tenant i.e. the authorised person in occupation shall be the occupier within the meaning of para 2(oo) of the Code, 2005. 12. In Seema Mansoor v. U.P. Power Corporation and Others reported in 2014 (6) ADJ 672 , this Court, relying upon the Statement of Objects and Reasons and Section 42 and 43 of Electricity Act, 2003, read with Clause 4.4 of the Electricity Supply Code, 2005, observed as under: "7. Electrical undertakings have acquired the character of public utility by reason of their monopolistic position. The State in exercise of its legislative power has enacted the Electricity Act 2003 to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry as also to protect the interest of consumers and supply of electricity to all areas. The State in exercise of its legislative power has enacted the Electricity Act 2003 to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry as also to protect the interest of consumers and supply of electricity to all areas. The same is reflected from the statement of objects and reasons of Electricity Act, 2003. 8. Section 42 of the Act deals with duties of distribution licensee. The said section reads as under : ''42. Duties of distribution licensee and open access. -(1) it shall be a duty of a distribution licensee to develop and maintain an efficient, coordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act. 9. Section 43 of the Act cast duty upon licensee to supply electrical energy on request. Sub-section (1) of the said section reads as under : ''43. Duty to supply on request. -(1) Every distribution licensee, shall, on an application by the owner or occupier of any premises, given supply of electricity to such premises, within one month after receipt of the application requiring such supply: Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission: Provided further that in case of a village on hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area. (2). It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1): Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission. (3). If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default. 10. (3). If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default. 10. A bare reading of the provisions of the Electricity Act, 2003 go to show that every distribution licensee is under an obligation not only to develop but also to maintain efficient, coordinated and economical distribution system in the area of its supply. The provision of Section 43 of the Electricity Act cast a statutory duty upon the distribution licensee to supply electricity not only to owner but also occupier of premises located within the limits of the area of its supply subject to an application being made by owner or occupier in this regard and correspondingly the owner or occupier of any premises, as the case may be, has statutory right to supply and obtain such electricity supply from the distribution licensee. Of course, the right is subject to completion of formalities provided for the purpose. 11. Electricity Supply Code, 2005 reference of which has been made by learned counsel for the respondents to contend that electricity connection cannot be granted without consent from the owner enforced in 2005 enlists the obligations of the licensee and consumers vis-a-vis each other and specifies the set of practices to provide efficient, cost effective and consumer friendly service to the consumers. Under Clause 2.2 (oo) of 2005 Code 'Occupier' means the owner or authorized person in occupation of the premises where energy is used or proposed to be used. Clause 4.4 prescribes procedure for processing of application for supply. Clause 4.4 (a) which is relevant for the purpose of the present case reads as under : ''4.4. Processing of Application for Supply. (a) 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, specified by the Licensee, along with attested true copies of the following documents: (i) Proof of ownership of the premises in the form of registered sale deed or partition deed or succession or heir ship 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 or indemnity form as per Annexure 4.2. Order copy of appropriate court, in case of litigation regarding ownership of the premises, has to be enclosed. (ii)Approval/permission/NOC of the local authority, if required under any law/statute. (iii) In case of a partnership firm, partnership deed. (iv) In case of a Limited Company, Memorandum, articles of Association, Certificate of incorporation and list of Directors/certificate addresses. Owner's consent for getting new supply connection (Annexure 4.3). 12. Reference at this stage may also be made to the relevant annexure of Electricity Supply Code 2005. Annexure 4.3 in reference to clause 4.4 is a formate of owner consent for getting new supply connection. Annexure 4.2 in reference to clause 4.4 is a form of indemnity bond which is to be given in case the intending consumer is not the owner of the premises. The same is reproduced herein below : ANNEXURE 4.2 (Ref. Clause 4.4) This form is available free of cost INDEMNITY BOND (If the intending consumer is not the owner of the premises) To From _______________Engineer, _______________ _______________ _______________ Whereas the land/premises detailed hereunder, belongs to Sri/Smt. __________and I am only lessee/tenant/occupier of the said land/premises where I have applied for the electricity connection the said/premises and I am not able to obtain the consent of Sri/Smt.................................but produced the proof of occupancy, i. e. valid power of attorney/latest rent paid receipt/registered lease deed. Thereto I, in consideration of the grant of electricity connection to me on the conditions of supply for which I have executed the Agreement, further agree to indemnify and keep harmless the Licensee from all damages and claims whatsoever, including costs of suit, original petitions and all manner of legal or other proceedings that the Licensee may incur or likely to incur on account of any action of threat by or at the instance of the owner of the said Land/premises (whether such owner be the said Sri/Smt. ______________or any other). I also further agree that such loss, damages and any other claim resulting out of the electricity connection being given to me without the consent of the owner of the land/premises are also recoverable from me and my properties under the provisions of the Revenue Recovery Act, in force at the time of such recovery, or by such other proceedings as the Licensee may deem fit to initiate. I hold myself answerable to costs of such recoveries and proceedings also. I hold myself answerable to costs of such recoveries and proceedings also. Place Date Witnesses Signature of lessee/tenant/occupier (1) (2) 13. Section 43 of the Act enjoins a duty upon the licensee not only to supply electrical energy on an application in this behalf not only by a owner of a premises but also a occupier which has been defined under the Code 2005 to include any authorized person in occupation of the premises. A tenant would be an authorized person in occupation of a premises. 14. A perusal of Clause 4.4 of the Code 2005 goes to show that indemnity form as per Annexure 4.2 can also be filed along with an application for new connection. The purpose is to enable such tenants, in respect of whom the owner or landlord refuses to give no objection for a new connection. 15. A perusal of Annexure 4.2 reproduce herein-above goes to show that the purpose as is obvious from the reading of the aforesaid form is to indemnify the licensee for any loss that may accrue on account of any act of a person in occupation of the building though he may not be owner. Thus, the Code 2005 provides either for consent letter of owner of the premises or in the absence thereof indemnity bond by the lessee/tenant or occupier of the premises. Intention is, thus, clear that either there should be owner's consent to indemnify the licensees in case the tenant/lessee or occupier vacates and vanishes without leaving his address or in the alternative tenant/lessee or occupier may give an undertaking indemnifying any loss or damage to licensee on account of electricity connection being given to him without the consent of the owner of the land or premises making it recoverable from him and his property under the provisions of the Revenue Act in force at the time of such recovery, or by such other proceedings as the Licensee may deem fit to initiate. 16. From the reading of the aforesaid provisions, it is clear that licensee is under an obligation to supply electrical energy on a proper application being made and every owner or occupier, which will include a tenant, of the premises has statutory right to apply and obtain electricity supply from the licensee subject to his fulfilling requirements under the provisions of the Electricity Act, 2003 and the Electricity Supply Code 2005. ..." 13. ..." 13. Thus, from the observations made in the aforequoted judgment in the case of Seema Mansoor (supra) and as per Scheme of the Act, 2003, an occupier of the premises is entitled for electricity connection and licensee cannot deny the electric connection to such an occupier of the premises. 14. The above conclusion also finds support from the sub clause (f) (v) and (h) of Clause 4.3 of the Code, 2005, which read as follows: “(f) (i) ............. (ii) ............. (iii) ............. (iv) ............ (v) The recovery proceedings against the defaulting consumer, and where there defaulting consumer is a company, from the Directors of the company, shall be ensured. Where a financial institution has auctioned the property without consideration to licensees charge on assets, claims may be lodged with the concerned financial institution with diligent pursuance. (h) A new connection to such sub-divided premises shall be given only after the share of outstanding dues attributed to such sub-divided premises, is duly paid by the applicant. Licensee shall not refuse connection to an applicant only on the ground that, due on the other portions(s) of such premises have not been paid, nor shall the licensee demand record of last paid bills of other portion(s) from such applicants.” 15. It is admitted case of the respondent no. 3 that there are no dues specific to the shop in question occupied by the petitioner. The dues which are alleged were against M/s Rajasthan Thread, Azamul Khan, Sri Sharda Pd Singh, Mohiuddin Ahmed. Those persons are stated to have no connection with the shop in question occupied by the petitioner. 16. If there were dues against the aforesaid persons as alleged by respondent nos. 2 and 3, then they could have initiated proceedings for recovery of the dues against the defaulting consumers in terms of sub-clause (f) (v) of Clause 4.3 of the Code, 2005. 17. Under sub-clause (h) of Clause 4.3 of the Code, 2005, it has been mandated that licensee shall not refuse electric connection to an applicant on the ground that dues on other portions of such premises have not been paid, nor shall the licensee demand record of last paid bills of other portions from such applicants. The counsel for the respondents have not been able to produce any material as to any dues specifically to the premises occupied by the petitioner. 18. The counsel for the respondents have not been able to produce any material as to any dues specifically to the premises occupied by the petitioner. 18. Therefore, in view of the scheme as enumerated from the aforesaid provisions of the Act and the Code, the application of the petitioner for electric connection in the specific premises in question occupied by the petitioner cannot be rejected by the respondent nos. 2 and 3 and instead it needs to be considered and processed by the respondent nos. 2 and 3 in accordance with law. 19. For all the reasons aforestated, this writ petition is finally disposed of with a direction to the respondent no.3-Sub Divisional Officer, Urban Electricity Distribution Sub Division, Hathua Market, Varanasi to consider the application of the petitioner for new electric connection and take appropriate decision in accordance with law within four weeks from the date of submission of a certified copy of this order, after affording reasonable opportunity of hearing to the petitioner and the owner of the building. 20. It is made clear that any of the observations made in the body of this order shall not be treated as a finding on landlord-tenant relationship between the landlord of the building, who is not before us, and the petitioner.