Gujarat High Court
Nasirbhai Iliyasbhai Pochi vs Deputy Engineer, Pgcvl on 19 September, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/11599/2022 ORDER DATED: 19/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11599 of 2022
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NASIRBHAI ILIYASBHAI POCHI
Versus
DEPUTY ENGINEER, PGCVL
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Appearance:
MR DHRUV D DESAI(9909) for the Petitioner(s) No. 1
MR JIGAR M PATEL(3841) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
SERVED BY RPAD (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 19/09/2022
ORAL ORDER
1. Considering the subject matter of this petition, the matter is taken up for final hearing by consent of both the learned advocates appearing for the respective parties.
2. Rule returnable forthwith. Mr. Jigar M. Patel, learned advocate waives service of notice of rule on behalf of the respondent No.1-Electricity Company. Despite service of notice, respondent Nos.2 & 3 have chosen not to appear before this Court, and therefore, considering that the petitioner is without electricity connection since 08.06.2022, without waiting further for respondent Nos.2 and 3, the matter is taken up for final hearing.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
Page 1 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022C/SCA/11599/2022 ORDER DATED: 19/09/2022 "7[A] This Hon'ble Court may be pleased to admit and allow this petition;
Replace the prayer as per amendment dated 30.06.2022 [B] This Hon'ble Court may be pleased to issue writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or direction to the respondnet to provide supply of electricity immediately at the subject property or reconnect the electricity connection bearing consumer No.30302/16436/7 in accordance with law.
Alternatively This Hon'ble Court may be pleased to issue writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the communication/order dated 29.06.2022 passed by the respondent and further be pleased to direct the respondent authority to provide supply of electricity upon application dated 22.06.2022 in accordance with law.
[C] Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent No.1 to reconnect the electricity connection of consumer No.30302/16436/7 and call for the report from the respondent with regard to disconnection of supply of electricity connection at subject property.
[D] This Hon'ble Court may be pleased to direct the respondent to pay compensation for the difficulties, harmony, harassment and mental torture as the Hon'ble Court deems it fit.
[E] This Hon'ble Court may be pleased to pass such and further order as the nature and circumstances of the case may require."
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4. It is the case of the petitioner that the petitioner is the occupier of a residential premises situated at Plot No.511-1/F near Bhilwada Circle, Shishuvihar Circle, Bhavnagar bearing City Survey No.1954, Ward No.5, Sheet No.211. It is the petitioner's case that the petitioner had purchased the said premises by paying consideration to the erstwhile owner of the premises in the year 2007. However, the sale deed could not be executed in favour of the petitioner because of some dispute which took place between the petitioner and erstwhile owner of the premises. However, as the petitioner has paid the consideration and was in possession of the premises, the petitioner occupies the aforesaid premises since 2007 and the petitioner was also enjoying the electricity connection, already issued in favour of the erstwhile owner till 08.06.2022. It is the case of the petitioner that on 08.06.2022 at around 8.45 in the morning, the electricity connection of the residential premises of the petitioner was disconnected by respondent No.1-Electricity Company.
5. It is stated in the petition that in respect of the aforesaid property there is ongoing Special Civil Suit No.33 of 2018 before Principal Senior Civil Judge, Bhavnagar. However, at present, since the prayer in this petition is in Page 3 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022 C/SCA/11599/2022 ORDER DATED: 19/09/2022 respect of grant of electricity connection that fact is not required to be mentioned elaborately. But, it is indicated in the petition that though the petitioner occupies the property in respect of ownership of the property some civil litigation is going on between the petitioner and erstwhile owner of the property.
6. As the petitioner claims to be occupier of the property in question, the petitioner preferred an application for electricity connection on 22.06.2022 which was rejected by the Electricity Company on the ground that the petitioner has not provided registered sale deed of the subject property, and therefore, the aforesaid action of the respondent-Electricity Company is challenged by way of this petition with a prayer to quash and set aside the order dated 29.06.2022.
7. Heard Mr. Dhruv D. Desai, learned advocate for the petitioner and Mr. Jigar M. Patel, learned advocate for the respondent No.1-Electricity Company.
8. Mr. Dhruv Desai, learned advocate for the petitioner relying upon Section-43 of the Electricity Act submitted that getting the electricity connection is a right of the Page 4 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022 C/SCA/11599/2022 ORDER DATED: 19/09/2022 petitioner which cannot be denied by the Electricity Company. The respondent-Electricity Company is under obligation to give the electricity connection to the petitioner. Even if, the petitioner is an occupier and could not produced any documentary evidence related to his ownership of the premises in question. Mr. Dhruv Desai, learned advocate relied upon the judgment of this Court in the case of Arunachalam Mohan Servai V. State of Gujarat dated: 6.11.2017 in Special Civil Application No.10343 of 2015 and submitted that as per Section-43, it is the obligation upon the respondent No.1-Electricity Company to provide electricity connection to the petitioner irrespective of ownership right in respect of property in question, once the petitioner can establish that he is an occupier of the property in question.
9. Mr. Jigar Patel, learned advocate appearing for respondent No.1-Electricity Company submitted that as per the Gujarat Electricity Regulatory Commission (Electric Supply Code & Related Matters) Regulation, 2015 and, more particularly, in view of supply for order 4.16, the respondent-Electricity Company justified in not providing the electricity connection to the petitioner as the petitioner could not produced any documents mentioned in clause-
Page 5 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022C/SCA/11599/2022 ORDER DATED: 19/09/2022 4.16, clause-4.16 requires person to provide one of the following documents as acceptable proof of ownership or occupancy of premises. The clause-4.16 reads as under:-
"(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 [***] Demand notice or any other related document [(for residential connections only)];
(3) Letter of allotment;
(4) Ownership Certificate issued by village level Government functionary."
10. By pointing out to the aforesaid regulations, learned advocate Mr. Jigar Patel tried to justify the action of respondent No.1-Electricity Company. However, learned advocate Mr. Patel could not dispute the ratio of judgment of this Court in the case of Arunachalam Mohan Servai V. State of Gujarat. Further, learned advocate Mr. Patel while trying to justify the action of the respondent No.1- Electricity Company submitted that the electricity connection was disconnected by the Electricity Company on account of a complaint received by the Electricity Company from the original owner of the premises in question with whom the present petitioner is having Page 6 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022 C/SCA/11599/2022 ORDER DATED: 19/09/2022 dispute and the Civil Suit is pending between both of them.
11. I have heard both the learned advocates Mr. Dhruv Desai for the petitioner and learned advocate Mr. Jigal Patel for the respondent and perused the documents on record. I have also considered the judgment relied upon by learned advocate Mr. Dhruv Desai in the case of Arunachalam Mohan Servai V. State of Gujarat, wherein, co-ordinate bench of this Court in paragraph Nos. 4 to 6 observed as under:-
"4. Heard learned advocate Mr.M.A. Parekh for the petitioner, learned Assistant Government Pleader Mr.Manan Mehta for respondent Nos.1 and 5, learned advocate Mr.S.P. Hasurkar for respondent No.4 and learned advocate Mr.Deep Vyas for respondent No.6. Rest of the respondents though served with the rule of this court, have not entered their appearance.
4.1 Learned advocate for the petitioner submitted that in view of Section 43 of the Electricity Act, 2003, he is entitled to be granted and restored the electricity connection. It was submitted that the petitioner is having a factory at the place for which purpose the electricity connection is needed and that without electricity connection, factory had a standstill. It was submitted that under the GRUDA Act, factory premises has been regularized and the impact fees was paid by the petitioner. It was next submitted that the petitioner has been occupying the plot with a factory premise legalised as above. It is also contended that the land/place of the petitioner falls within the final Town Planning Scheme No.3 - Odhav which is declared as industrial zone, Page 7 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022 C/SCA/11599/2022 ORDER DATED: 19/09/2022 therefore, the Mamlatdar was not justified in puttingforth the ground that electricity connection may not be granted even as he was required to decide the representation of the petitioner.
5. It could not be disputed that the construction of the factory building of the petitioner has been regularised under the aforesaid Act. The ownership aspect has remained disputed and the representation of the petitioner is pending before the competent authority in that regard, which the petitioner has been pursuing.
5.1 Now, Section 43 of the Electricity Act, 2003 reads as under.
"43. Duty to supply on request (1) Save as otherwise provided in this 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 the application requiring such supply: Provided that where such supply requires extension of distribution mains, or commissioning of new substations, 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 or 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 Page 8 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022 C/SCA/11599/2022 ORDER DATED: 19/09/2022 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."
5.2 A reading of the aforesaid provision would go to show that if the conditions of the said provision is satisfied by the person who is either occupier or owner of the premises in question, it is incumbent on part of the electricity company to provide electricity connection. The language used is 'owner' or 'occupier'. There is no dispute in the present case that the petitioner is in physical occupation of the place having his factory thereon, construction of which was regularized under the Act.
6. The decisive aspect in the entire controversy is that when the petitioner is occupier of the land in question and on the basis of his occupation he claims restoration of the electricity connection, it is the duty in law of the electricity company to grant such electricity connection and if the connection snapped, to re-grant and restore the same. The petitioner qualifies as an occupier of the premises. The petitioner wants electricity for running of its factory and qua the factory his occupation is quite legal. When the petitioner is shown to be in physical occupation of the place in question, he cannot be denied electricity connection. The electricity company ought to have granted the connection to the petitioner in light of provision of Section 43 of the Act when the petitioner has established his physical occupation of the place/premises."
12. Considering the fact that in the judgment relied upon by learned advocate Mr. Dhruv Desai also the issue was related to non supply of electricity connection on account of non production of any document which may show the Page 9 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022 C/SCA/11599/2022 ORDER DATED: 19/09/2022 ownership of the petitioner. In the instant case also as the issue is almost identical, but for the fact that, there the connection was demanded in respect of an industrial connection, whereas, in the instant case, the petitioner is opting for electricity connection in respect of residential premises. However, that will not change the position of law, therefore, the present petition is also required to be allowed, and hence, impugned order dated 29.06.2022 is required to be quashed and set aside and the same is quashed and set aside. Further, respondent No.1 is directed to consider the application of the petitioner and to provide him electricity connection within a period of three weeks from the date of receipt of the order on petitioner furnishing an indemnity bond to the respondent No.1- Electricity Company with indemnify losses respondent No.1 occurred any loss.
13. In view of the above, petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
(NIRZAR S. DESAI,J) Manoj Page 10 of 10 Downloaded on : Tue Sep 20 21:50:17 IST 2022