Delhi District Court
Smt. Zubeda vs B.S.E.S. Yamuna Power Limited on 26 March, 2011
IN THE COURT OF SH.SAURABH KULSHRESHTHA
CCJ:ARC(EAST):KARKARDOOMA COURT: DELHI
Civil Suit no:1475/08
Unique Case ID no.02402C0527142008
Smt. Zubeda
Wife of Mohd. Rahis
R/o House no. A-6, Gali No.9,
Shastri Park, Delhi-110053.
....... Plaintiff
Versus
1.B.S.E.S. Yamuna Power Limited.
Through its Executive Engineer
Having its registered office at
Shakti Kiran Building, Karkardooma,
Delhi-110032.
2.Smt. Shamshuduz Begum
Wife of Mohd. Yunus
R/o A-6, Gali No.9, Shashtri Park,
Delhi-53.
...... Defendants
Suit for mandatory injunction.
Date of Institution of the suit : 21.07.2008
Date on which judgment was reserved : 16.03.2011
Date of decision : 26.03.2011
Decision : Decreed
JUDGMENT
Suit no.1475/08 Page 1/19
1. This is a suit for mandatory injunction. The plaintiff claims herself to be a tenant in respect of premises comprising of two rooms, toilet, bath room, half open court yard, half covered cemented shed alongwith both the stair case as shown in the site plan in property bearing no. A-6, Gali No.9, Shastri Park, Delhi-53 at a monthly rent of Rs.40/- per month (excluding other charges) under the ownership of the defendant no. 2.
2. The version of the plaintiff is that the father of the plaintiff namely Sh. Budhi Khan was inducted as a tenant in the suit property by Abdul Hamid and the plaintiff has been residing in the tenanted premises since the inception of the tenancy along with her father. In the year 1989, the above said property was sold by Abdul Hamid to one Sh. Hans Raj Katyal and the tenancy was attorned.
3. It is further the case of the plaintiff that the plaintiff was living in the suit premises with her parents to look after her parents. The father of the plaintiff expired on 20.07.1989 and thereafter, Suit no.1475/08 Page 2/19 plaintiff started making the payment of the rent to Sh. Hans Raj Katyal. It is further averred that Sh. Hans Raj Katyal expired and his son Sh. Vinod Katyal became the landlord of the premises in question and Sh. Vinod Katyal refused to receive the rent in respect of the premises. It is further averred that thereafter, the property in question was purchased by the defendant no. 2 and the Defendant no. 2 also filed an eviction petition under Section 14 (1) (a) and (b) of DRC Act in respect of the suit premises.
4. It is further averred that there was one electricity connection in the tenanted premises in the name of Abdul Hamid which was disconnected by the electricity department on account of non payment of electricity charges. The officials of BSES conducted an inspection at the aforesaid property on 08.01.2007 and thereafter, a theft bill was raised against the plaintiff and the same was settled by the plaintiff with BSES YPL and the entire payment of the said electricity bill was made by the plaintiff and thereafter no objection certificate was issued in the name of the plaintiff by BSES. Suit no.1475/08 Page 3/19
5. The plaintiff has averred that she has been residing in the tenanted premises without electricity. The grievance of the plaintiff is that she had requested the defendant no. 2 to issue a no objection certificate in favour of the plaintiff for getting a fresh electricity connection installed at the tenanted premises but defendant no.2 refused to do so. Plaintiff also filed a petition under Section 45 of DRC Act against Sh. Vinod Katyal and defendant no. 2. however the same was withdrawn and thereafter, another petition was filed for getting a new electricity connection in her name and since there was no provision under Section 45 of DRC Act for the same, the second petition was also withdrawn.
6. Thereafter the plaintiff filed the present suit for getting a fresh electricity connection in her own name. The plaintiff has claimed a mandatory injunction directing the defendant no. 2 to issue no objection certificate in favour of the plaintiff for getting a fresh electricity connection in her name and a directing the defendant no. 1 to install a fresh electricity connection in the tenanted premises in the Suit no.1475/08 Page 4/19 name of the plaintiff.
7. Defendants appeared before the court pursuant to service of summons and filed their written statements. The defendant no.1 contended that the plaintiff was directed to complete the commercial formalities and for getting an electricity connection in the name of a tenant a no objection certificate is required from the landlord which was not supplied and hence the electricity connection was not sanctioned.
8. The Defendant no. 2 filed his written statement. Defendant no. 2 admitted that the plaintiff had became a tenant in the aforesaid premises on the demise of Sh. Budhi Khan. Defendant no.2 further stated that the plaintiff is not making the payment of the rent. It was further stated that defendant no. 2 had filed an eviction petition under Section 14 (1) (a) and (b) against the plaintiff and Smt. Rajrani which is pending. The defendant no. 2 has further pleaded that Smt. Rajrani had stated that in the said petition that she has purchased the Suit no.1475/08 Page 5/19 property from the plaintiff, for a sum of Rs.80000/- and Smt. Rajrani also filed a copy of sale purchase documents. The defendant further stated that the real brothers of the plaintiff were instrumental in fraudulently disposing the property of the defendant no. 2 to Smt. Rajrani on the basis of forged documents. The defendant no. 2 further contended that the plaintiff has deposited rent @ Rs.40/- per month only although the actual rate of rent is Rs. 3000/- per month. The defendant no. 2 contended that he rightly refused NOC to the plaintiff. Defendant no. 2 prayed for dismissal of the suit.
9. The plaintiff filed replication to the written statements of the defendants and denied the averments made in the written statements of the defendants and simultaneously reiterated and reaffirmed the contents of the plaint.
10. Vide order dated 20.04.2010, the following issues were framed in this case:-
Suit no.1475/08 Page 6/19
1.Whether the plaintiff is entitled for relief of mandatory injunction as prayed for ? OPP
2.Relief.
11. The plaintiff examined herself as PW-1 and deposed on the lines of the plaint. The defendant no. 2 examined herself as DW-1 and deposed on the lines of the written statement. No evidence was adduced by the defendant no.1.
Issue No. 1
12. The onus to prove this issue was upon the plaintiff. The question to be answered is as to whether the plaintiff is entitled for the relief of mandatory injunction as prayed for.
13. PW 1 deposed that the plaintiff is a tenant under the defendant no. 2 in respect of the suit property at a rent of Rs.40/- per month. The fact that plaintiff is a tenant under the defendant no. 2 has also been admitted by the defendant no. 2 / DW-1. However the only Suit no.1475/08 Page 7/19 contention of the defendant no. 2 is that the rate of rent of of the suit premises is Rs.3000/- exclusive of electricity and water charges.
14. DW-1 further deposed that the plaintiff has unauthorisedly and illegally sublet one rear portion of 30 sq. yds. to Smt. Rajrani and it has come to the knowledge of the DW-1 that defendant has illegally sold the said portion of the suit property to Smt. Rajrani. The Defendant no. 2/ DW 1 further deposed that he has filed a petition for eviction under Section 14 (1) (a) and (b) of DRC Act against the plaintiff and Smt. Rajrani. He further deposed that the plaintiff had filed two petitions under Section 45 of DRC Act and the said petitions were withdrawn.
15. From a perusal of the record, it is clear that plaintiff is in settled possession of the suit premises as detailed in the site plan in capacity of a tenant under the defendant no. 2. However this is not the correct forum to determine as to what is the rate of rent, whether the plaintiff has sublet any portion of the premises or the plaintiff is liable Suit no.1475/08 Page 8/19 to be evicted. These are questions which are to be decided in appropriate proceedings.
16. The limited question which is to be decided by this court is as to whether the plaintiff is entitled for a fresh/ separate electricity connection in her name in the suit premises.
17. A bare perusal of Section 43 of the Electricity Act, 2003 shows that the distribution licencee /defendant is under an obligation to provide electricity connection to the owner/ occupier of any premises.
18. In the judgment AIR 2004 CALCUTTA 227 it was held:
" ... ..52. Section 43 of the Act of 2003 obliges every distribution licensee to give supply of electricity to the owner or occupier of any premises. Section 43 (2) proviso clearly provides that an occupier or owner is entitled to demand separate supply at the premises subject to payment of such amount as may be determined by the Appropriate Suit no.1475/08 Page 9/19 Commission. This section is wholly inconsistent with the stand taken by the CESC Limited although the present conditions of supply of CESC Limited also entitles the consumer to insist on a separate supply (Clause 3 (a)).
19. Under the Electricity Act of 2003, no licensee including CESC Limited can refuse to give supply to owners or occupiers of premises and the owners and occupiers have the right to obtain a separate supply. This is a statutory right given under the Electricity Act of 2003 and it is not open to any licensee including CESC Limited to render the statute ineffective by relying on conditions of supply framed under the earlier Act, since repealed... ... "
20. In the judgment tiled as `Fashion' Proprietor Aswani Kumar Maity v. West Bengal State Electricity Distribution Co. Ltd. Reported as 2009(4) ICC 502 it was held:
" ......If the law of the land provides that a person in possession of any premises may not be dispossessed therefrom except in accordance Suit no.1475/08 Page 10/19 with law, it is implicit that the possession of the person is protected till such time that an appropriate forum holds otherwise and the person is removed from the premises under due process of law. It would then defy reason to suggest that such person can continue to be in possession but be denied an essential utility as electricity which is within the broad sweep of the right to life guaranteed under Article 21 of the Constitution....."
21. In the judgment tiled as Amarendra Singh v. Calcutta Electric Supply Corporation Ltd reported as AIR 2008 Calcutta 66(DB) it was held:
" .....In view of the provisions in Section 43 of the Electricity Act, 2003, the appellant herein being the occupier is entitled to enjoy the electricity at the occupied portion of the premises in question.
3. The legality and/or validity of the occupation of the premises in question by the appellant can be decided in the civil Court but that will not prevent the said appellant from enjoying the benefit of electric connection...."
Suit no.1475/08 Page 11/19
22. In Atanu Maity v. W.B. SEB, (2006) 1 CHN 640 [Date of decision : 07-11-2005, Hon' ble High Court of Calcutta] that the electricity board was obliged to supply electricity to the petitioner tenant and this is exactly the obligation cast upon the Board by S. 43 of the Electricity Act, 2003. The Court observed in the instant case that in the capacity of tenant of the premises, the petitioner would be entitled to get supply of electricity through a separate meter. Supply of electricity to him would not cause any prejudice to the rights and contentions of the landlord nor would such supply create any right in favour of the petitioner insofar as the tenancy is concerned.
23. In the judgment "T. P. AEC Ltd. v. S. (Rakhial) C. Co- op. Housing Socy. Ltd" reported as AIR 2006 GUJARAT 190 (DB) it was held:
" ....19. Prima facie, I am of the considered opinion that the Suit no.1475/08 Page 12/19 plaintiff is the owner/ occupier of the suit premises within the meaning and contemplation of Section 43 of Electricity Act, 2003 and therefore the defendant / distribution licencee is under an obligation to provide separate electricity connection to the plaintiff.
24. I am of the considered opinion that the expression occupier in Section 43 of the Electricity Act, 2003 means and includes a person who prima facie is in de facto settled possession/ occupation of a premises. His possession should prima facie have some legality in the sense that he should not be a rank trespasser. A person whose entry is lawful and who is in settled possession is an occupier of the premises within the meaning of section 43 of the Electricity Act, 2003. In view of the judgments cited above I am of the opinion that Section 43 of the Electricity Act enjoins upon the licensee to provide electricity connection to the owner / occupier of any premises.
25. Adverting to the facts of the present case the plaintiff is in settled de facto possession of the suit premises. Her possession in Suit no.1475/08 Page 13/19 the suit premises is admitted. The plaintiff is definitely not a rank trespasser. Her entry in the property was lawful. I have already held that the material on record clearly shows that the plaintiff is a tenant under the defendant no. 2 in the suit premises. In these circumstances the possession of the plaintiff in the suit premises is settled and he cannot be evicted except by due process of law. Reference may be made to the judgments of the Hon' "Krishna Ram ble Supreme Mahale Court in v. Shobha Venkat Rao", AIR 1989 SUPREME COURT 2097 and "Rame Gowda v. M. Varadappa Naidu" AIR 2004 SUPREME COURT 4609. Thus the plaintiff is definitely an occupier of the suit premises within the contemplation of section 43 of the Electricity Act, 2003.
26. Once it is clear that he cannot be evicted except by due process of law the necessary concomitant is that he cannot be compelled to abdicate his possession by denying an essential amenity like electricity as that would amount to indirectly evicting him except by due process of law. Once the possession is protected his right to enjoy basic amenities is also protected since right to enjoy the basic Suit no.1475/08 Page 14/19 amenities like electricity is necessarily linked up with possession. Electricity is an essential amenity and denial of electricity is bound to cause serious prejudice, undue hardship and extreme inconvenience to the Plaintiff.
27. In this context reference may also be made to the Order dated 22.02.2008 of the Hon'ble High Court of Delhi in Civil Writ Petition no. 4922/07 tilted as 'Prabhu Dayal vs. BSES Yamuna Power Ltd and others', wherein the Hon'ble High Court of Delhi had held :
" .......In view of the inter se dispute between the petitioners and respondents no. 2 to 5, it is apparent that the respondent no. 2 to 5 are not ready and willing to give no objection certificate. However, occupation and tenancy rights of the petitioners are not denied and have been accepted and admitted. The petitioners have right to enjoy and use the tenancy rights. The petitioners are certainly entitled to electricity connection as their occupation cannot be regarded as unauthorized. It is admitted that no decree of eviction has been passed Suit no.1475/08 Page 15/19 against the petitioners. In view of the peculiar facts and circumstances of the case, it is directed that respondent no. 1 may process the application filed by the petitioners in accordance with law but without insisting on no objection certificate the landlords. On the question of arrears, it will be open for the respondent no. 1 to decide the said question. It is clarified that as and when the petitioners vacate the premises, they will inform the respondent no. 1 or the supplier company. The petitioners will also be responsible for payment of the electricity consumption charges and it will be the duty of the petitioners to ensure that the landlords / respondent no. 2 to 5 are not put in any inconvenience on account of grant of electricity connection. The petitioners will identify respondent no. 2 to 5 by filing an indemnity bond in this Court...."
28. In view of the foregoing reasons and the legal position discussed herein above I am of the considered opinion that the plaintiff is entitled for a fresh/ separate electricity connection in her own name in the tenanted premises. The defendant no. 1 is liable to Suit no.1475/08 Page 16/19 provide such fresh/ separate electricity connection to the plaintiff in the tenanted premises. Since the defendant no. 2 is not wiling to give NOC the requirement to give NOC stands dispensed with as the law does not make the grant of such electricity connection dependent on the issuance of NOC by the landlord.
29. However, this court is cognizant of the fact that in case of any dues in respect of the electricity connection in the name of the plaintiff in respect of suit property no further electricity connection would be installed by the licencee without clearance of the aforesaid dues. Hence, the interest of the landlord i.e. defendant no. 2 is also to be safeguarded.
30. Plaintiff is therefore directed to furnish an indemnity bond indemnifying the defendant no. 2 from any liability arising from the electricity connection in the name of the plaintiff in the suit premises and clearly undertaking that any dues in respect of the electricity connection in the name of the plaintiff shall be payable by Suit no.1475/08 Page 17/19 the plaintiff. The plaintiff is also directed to deposit an additional security of an amount Rs.10,000/- with the defendant no. 1. The amount deposited shall be refundable. Needless to state that the plaintiff shall pay the regular consumption bills raised in due course. In case the plaintiff makes any default in the payment of electricity bills the defendant no. 1 would promptly adjust the bill amount from the said deposit, so that in no case the overdue amount exceeds the security deposit and the defendant no. 1 would further be at liberty to disconnect the connection after complying with the provisions of section 56 of the Electricity Act, 2003.
31. Subject to fulfillment of these conditions a decree of mandatory injunction is passed in favour of plaintiff and against defendants directing the defendant no.1 to install a fresh electricity connection in the name of the plaintiff in the suit premises. An interim mandatory injunction to this effect was also passed and the electricity connection has already been installed in the suit property in the name of plaintiff. The plaintiffs are permitted to continue with the said Suit no.1475/08 Page 18/19 electricity connection subject to the fulfillment of the two conditions stated herein before. The conditions be complied within 60 days.
32. Suit is decreed in aforesaid terms. Parties are left to bear their own costs. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA) Court on 26.03.2011 CCJ/ARC(East)
(Judgment contains 19 pages.) KARKARDOOMA COURTS, DELHI Suit no.1475/08 Page 19/19