Bombay High Court
Mr. Budreddin A. Khan vs The Executive Engineer on 6 March, 2013
Author: R M Savant
Bench: R M Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8746 of 2012
Mr. Budreddin a. Khan : Petitioner
versus
The Executive Engineer, Maharashtra State Electricity Dist. Co. Ltd. & Anr.
: Respondents
Mr. A. S. Khandeparkar i/b Khandeparkar & Associates for the Petitioner
Mr. S. K. Chari i/b M. V. Kini & Co. for the Respondent No.1
CORAM:- R M SAVANT, J
DATED :- 6th MARCH, 2013.
ORAL ORDER
1 Rule, with the consent of the parties made returnable forthwith and heard.
2 The concurrent finding recorded by the Courts below against the Petitioner i.e. the original Plaintiff in respect of his entitlement for the discretionary relief of injunction for restraining the Respondents herein from supplying electricity to the other consumers through the Dedicated Distribution Facility (DDF) which is provided to the Petitioner is the subject matter of the above Writ Petition.
3 It is not necessary to burden this Order with unnecessary details.
Suffice it to say that the Petitioner who is carrying on business of plastic processing factory in the name and style of M/s. Goodluck Plastic situated mmj 1/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw at Goteghar Uttarshiv, District Thane, applied for an electricity connection under what is known as Dedicated Distribution Facility Scheme (DDF scheme) to the Respondent No.1 electricity distribution company. Under the said scheme, the Petitioner had to make certain payments towards deposit and was required to complete all installation, erection and commissioning of electric poles, transformer and overhead lines as per the estimate given by the Respondents under the work order which was issued by the said Respondents. According to the Petitioner, the said estimate was Rs.22,45,108/-. The Petitioner was required to complete the said infrastructure work through a licenced electrical contractor. After getting the infrastructure work completed through a licenced electrical contractor, the Petitioner submitted a completion report to the Respondents. It is the case of the Petitioner that the Respondents inspected the site and approved the work. The Petitioner aggrieved by the fact that the Respondents were in the process of giving electricity connection to the other persons in the vicinity from the facility provided to the Petitioner, addressed a letter to the Respondents wherein the Petitioner requested the Respondents not to provide the electricity connection to the other consumers. After addressing an Advocate's notice, the Petitioner filed the instant Suit in question being Regular Civil Suit No.656 of 2011. The main relief sought in the Suit is mmj 2/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw seeking a permanent injunction against the Respondents from providing any electrical connection from the poles and the transformers or overhead lines to any other third person or persons in the vicinity or adjacent to the property of the Plaintiff.
4 In the said Suit the Petitioner filed an application for temporary injunction in which the relief sought was of the same nature as the final relief sought in the Suit namely to restrain the Respondents by an order of injunction from providing any electricity connection from the facility provided to the Petitioner. The said application for injunction Exhibit 5 was opposed by the Respondents herein who are the Defendants in the said Suit. In reply the maintainability of the Suit was questioned by the Respondents on the ground that the Petitioner could approach the Consumer Grievance Redressal Forum constituted under Section 42(5) of the Electricity Act 2003. It was also contended in the said reply that the Respondents are entitled to provide supply to the other consumers from the service line of the said DDF facility provided to the Petitioner. The Trial Court i.e. the Learned Civil Judge Senior Division, Thane, considered the said application and rejected the same interalia on the ground that the Petitioner has an alternate remedy and that the Petitioner had not produced any material by way of documents to indicate that the mmj 3/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw Defendants are not entitled to supply electricity to the other consumers from the DDF facility provided to the Petitioner. This the Trial Court did by its order dated 7-8-2012.
5 The aggrieved Plaintiff i.e. the Petitioner above named took exception to the said order by filing Misc Civil Appeal being No.135 of 2012, the Lower Appellate Court has by the impugned order dated 4-9- 2012 dismissed the Appeal and has thereby confirmed the order passed by the Trial Court rejecting the application for injunction. The Lower Appellate Court adverted to the fact that in the absence of any material produced by the Plaintiff to indicate the features of the said DDF facility, it was not possible to accept the case of the Plaintiff that the Defendants were not entitled to provide electricity connection to the other consumers in the vicinity. The Lower Appellate Court adverted to the fact that in terms of clause (g) of the letter sanctioning the DDF scheme to the Plaintiff, the Plaintiff was required to hand over the entire line installation without any reservation to the Executive Engineer of the Defendant No.1 distribution company and once that be so the Respondents were entitled to use the said facility. As indicated above, it is the said order which is impugned in the present Petition.
6 Heard the learned Counsel for the parties.
mmj 4/10 ::: Downloaded on - 09/06/2013 19:42:32 :::wp-8746-12.sxw 7 The Learned Counsel for the Petitioner Mr. Khandeparkar sought to reiterate the case of the Petitioner i.e. the original Plaintiff which was urged before the Trial Court so as to contend that the Respondents herein i.e. the Defendants in the Suit were not entitled to use the infrastructure of the Petitioner to supply electricity to the other consumers in the vicinity having regard to the fact that the Petitioner was provided with the DDF facility.
8 Per contra, the Learned Counsel appearing on behalf of the Respondents herein i.e. the Defendants would contend that the fact that the Petitioner was provided a DDF facility would not mean that the Respondents are not entitled to provide connection to the other people in the vicinity from the service line. The Learned Counsel would seek to rely upon the Maharashtra Electricity Regulatory Commission (Electricity Supply Code and Other Conditions of Supply) Regulations 2005 and especially clause 2.1(g) thereof wherein the terms "Dedicated Distribution Facility" is defined. The Learned Counsel would contend that within the DDF facility consumers there are two categories i.e. the express feeder consumer who is categorised as "High Tension - I Consumer Continuous"
and a Non Express Feeder Consumer who is categorised as "High Tension-I Non Continuous". The Learned Counsel would contend that in so far as the mmj 5/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw first category is concerned, the continuous supply is envisaged notwithstanding staggering holidays whereas the second category is concerned, they are subject to staggering holidays. The Learned Counsel would contend that the Petitioner herein belongs to the second category i.e. high tension-I non continuous and sought to rely upon the bill which has been annexed to the affidavit in reply filed by the Executive Engineer of the Respondent No.1
9 At this stage a note is required to be taken of the two affidavits which have been filed on behalf of the Respondent No.1. The first affidavit is dated 25-10-2012 filed by the Executive Engineer Pandurang Mahadeo Hundekari wherein the definition of DDF is extracted. In the context of the controversy which has arisen in the present Petition, the averments made in paragraph 18 are relevant. The said paragraph 18 is therefore extracted herein under :
18. With reference to paras 7 to 9 of the Petition, the contents thereof are a matter of record and therefore need to comments. I further say and submit that the Misc Appeal No.135 of 2012 preferred by the petitioner was rightly rejected by the Hon'ble Court vide its order dated 4-9-2012. As already stated by the answering Respondent, only sanctions are granted to the consumers for the electricity connection. The electricity connection to the consumers in the vicinity, in any case, will not be given from the transformers used by the Petitioner.
The photographs annexed by the petitioners are of mmj 6/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw the erection of the poles by the consumers to whom the sanction is granted by the Respondent and no electricity connections are yet actually granted to the other consumers. In this regard, it is stated that the Petitioner himself had erected the poles for his use of electricity for tapping the electricity line from the already existing one. In a similar fashion, unless he is covered by express feeder DDF facility, the other consumers are also entitled to erect the poles and tap the line from that of the Petitioners.
(emphasis supplied) After the said affidavit was filed and in view of the statement therein to bring more clarity to the said statement, the second affidavit dated 20-2- 2013 has been filed by the said Executive Engineer. The statement made in paragraph 18 of the earlier affidavit is clarified in paragraph 5 of the second affidavit dated 20-2-2013. The said paragraph 5 is therefore extracted herein below :
5. As has already been stated at paragraph No.18 of my earlier affidavit dated 25th October, 2012, only sanctions are granted to the consumers for the electricity connection. The electricity connection to the consumers in the vicinity, in any case, will not be given from the transformers used by the Petitioner.
The photographs annexed by the petitioner are of the erection of the poles by the consumers to whom the sanction is granted by the answering Respondent and no electricity connections are yet actually granted to the other consumers. In this regard, it is stated that the Petitioner himself has erected the poles for tapping electricity for his use from the already mmj 7/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw existing electricity supply line. In a similar fashion, the other consumers are also entitled to erect poles and tap electricity from the already existing electricity supply line from which the petitioner is tapping electricity.
(emphasis supplied) On the basis of the statement made in paragraph 18 which is to the effect that unless the consumer is provided with a express DDF facility the other consumers are also entitled to erect the poles and tap from the Petitioner. The tapping of the electricity supply line of the Respondents was initially sought to be objected on behalf of the Petitioner by contending that the Petitioner's transformer as well as the line could not be tapped for providing connection to the other consumers. However, in the light of the second affidavit which has been filed and which clarifies the position that the Petitioner's transformer will not be used and what would be done is only tapping the existing supply line of the Respondents for providing electricity connection to the other consumers in the vicinity. In the said paragraph 5 of the second affidavit the Respondents also accept the position that the Petitioner has erected the poles for tapping electricity for his use from the already existing supply line. The Learned Counsel appearing for the Petitioner fairly accepts the position that in terms of the regulation 2.1(g) the Respondents would be entitled to do so as the supply mmj 8/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw line goes to the transformer and since the statement has been made by the Respondents that the transformer would not be used, the Petitioner cannot have any objection to the service line being utilised for providing supply to the other consumers. In the said context, it would be apposite to note the definition of DDF. The said definition is extracted herein under :
"Dedicated distribution facilities" means such facilities not including a service line, forming part of the distribution system of the Distribution Licensee which are clearly and solely dedicated to the supply of electricity to a single consumer or a group of consumers on the same premises or contiguous premises."
A reading of the said definition therefore makes it clear that though a person may be a consumer in a DDF such facility would not include the service line of the Respondent No.1. The said service line may be forming part of the distribution system of the distribution licensee. In view thereof the service line through which a DDF consumer is provided electricity there cannot be any exclusivity and the distribution company like the Respondent No.1 would be entitled to tap the said service line for providing electricity to other consumers. In the light of the said definition which is basis for two affidavits filed on behalf of the Respondents there is no merit in the challenge to the impugned orders. The impugned orders do not called for any interdiction save and except the clarification to be issued mmj 9/10 ::: Downloaded on - 09/06/2013 19:42:32 ::: wp-8746-12.sxw on the basis of the affidavits filed. The clarification would be as under :
(i) that in terms of the said two affidavits, the Respondents would not use the transformer of the Petitioner for supplying the electricity to the other consumers in the vicinity which statement made in the affidavits is accepted.
(ii) However, the Respondents would be entitled to tap the service line for providing the electricity to the other consumers in the vicinity.
(iv) The Petitioner would be entitled to be reimbursed for the poles that have been erected at his own cost by adjustment of the amount that he has spent, in the future bills which adjustment would be as per the estimate and sanction letter and as per the rules and policies applicable.
Rule is accordingly made partly absolute to the extent mentioned herein above with parties to bear their respective costs.
(R M SAVANT, J) mmj 10/10 ::: Downloaded on - 09/06/2013 19:42:32 :::