Delhi District Court
Sh. Mohd. Zahid vs Bses/Bypl on 31 August, 2022
IN THE COURT OF MS NEHA GARG, LD. CIVIL JUDGE-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No:-DLCT03-000935-2017
CS SCJ No.435/2017
Sh. Mohd. Zahid
S/o Late Sh. Mohd. Ibrahim
R/o 7460, Gali Madar Wali,
Near Chhoti Masjid, Quresh Nagar,
Sadar Bazar, Delhi-110006
.............. Plaintiff
Versus
1. BSES/BYPL
For District Manager,
Aram Bagh, Paharganj,
New Delhi-110055.
2. Station House Officer
P.S. Sadar Bazar, Delhi-6
3. Sh. Faizan Qureshi,
S/o Mohd. Naeem,
R/o 7461, 2nd Floor,
Gali Madar Wali,
Near Chhoti Masjid, Quresh Nagar,
Sadar Bazar, Delhi-110006
4. Smt. Shamim Bano
W/o Mohd. Idrish
R/o 7461, 3rd Floor, Gali Madar Wali,
Near Chhoti Masjid, Quresh Nagar,
Sadar Bazar, Delhi-110006
.........Defendants
Date of institution of suit : 10.02.2017
CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 1 of 30
Date on which reserved for judgment : 04.08.2022
Date of pronouncement of Judgment : 31.08.2022
SUIT FOR DECLRATION, MANDATORY, PROHIBITORY AND
PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed for declaration, mandatory, prohibitory and permanent injunction. The brief facts as set out in the plaint are that the plaintiff is the owner purchaser of Ground Floor, Mezzanine Floor, Second Floor and Third Floor of the property no.7461, Galiii Madar Wali, Near Chhoti Masjid, Qqquresh Nagar, Sadar Bazar, Delhi-110006 (herein after referred to as 'the suit property'). Ground floor and mezzanine floor is in occupation/possession of the plaintiff. That Sh. Faizan Qureshi and Smt. Shamim Bano i.e., defendants no.3 and 4 are the illegal occupiers/trespassers of second floor and third floor in the above said property, and the facing criminal complaint case no.140/1/16, 509143/16 pending in the court of Hon'ble Ms. Ambika Singh, Ld. MM (Central), Tis Hazari Court, Delhi for committing criminal breach of trust and cheating. That the defendants no.3 and 4 being illegal occupants and trespasser are residing in their respective floors of the property in question without getting legal connection of water and electricity from DJB and BSES/BYPL; they using the supply of water and electricity from DJB and BSES/BYPL. Supply line by way of direct theft. That on 12.12.2015 the inspecting staff of the BSES/BYPL i.e., the defendant no.1 raided the suit property and during the course of inspection the defendants no.3 and 4 were caught red-handed in direct theft case of electricity and BSES/BYPL raised a bill of Rs.57904/- to be paid within specified time, failing which they were warned to face prosecution and immediate disconnection of electricity. That then the CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 2 of 30 defendants no.3 and 4 approached to the permanent Lok Adalat of BSES/BYPL Mata Sundri Road, New Delhi for settlement the case, by way of filing a case E- PLA-I No.4948/2016. ID-YM. 12.12.2015 C.A.O. 20/PHG. That on 20.12.2016 the matter was settled between the defendants no.3 and 4 and BSES/BYPL and it was agreed that the agreed amount is to be paid in three installments on or before 30.12.2016, 30.01.2017 and 28.02.2017. It was also agreed that after deposit of the first installment the request of petitioners i.e., the defendants no.3 and 4 for releases of a new connection, will be processed immediately, thereafter a new connection will be released within one week from the date of deposit of the first installment, subject to completion of commercial formalities and also subject to deposit of any other outstanding amount against the premises. That BSES/BYPL i.e., the defendant no.1 herein restored the electricity supply of the defendants no.3 and 4 on 24.01.2017. That the plaintiff raised objections on restoration of the electricity because he was not made party in the case and was not heard before passing the order and because the restoration of electricity to the defendants no.3 and 4 was in illegal manner, they were not entitled for getting the basic amenity electricity, in this manner police was informed on no.100. The electricity connection was restored to them without hearing the objections of the plaintiff in presence of Mr. Ashish Kumar (SI) from PS Sadar Bazar who was very well known about the ongoing criminal litigation between the plaintiff and the defendants no.3 and 4 and facts of the case but unfortunately preferred silence and supported these criminal activities. That on 27.01.2017 the plaintiff moved a complaint to the District Manager BSES/BYPL (the defendant no.1 herein) and to the SHO PS Sadar Bazar (the defendant no.2 herein) against granting new electricity connection/installation of new meter at the suit property illegally on the bases of forged documents, false story, further requesting them to take legal action CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 3 of 30 against erring persons and to remove electricity meter installed in the suit property. But all efforts of the plaintiff proved futile. That the plaintiff became the most affected/aggrieved person, his obligatory rights are encroached with the illegal acts and conducts of the defendants no.1 to 4. BSES/BYPL restored/installed electricity connection/meter in the suit property without giving the plaintiff an opportunity of being heard, without making completion of commercial formalities, without knowing the real facts of the case, without making any verification of the forged documents of the suit property, without NOC of the owner/plaintiff. That electricity connections were installed without getting inspection report, demand note and without deposit of any other outstanding amount against the premises. BSES/BYPL installed the electricity meter in the suit property in illegal manner with the help and assistance of the area police especially in presence of Mr. Ashish Kumar (S.I.) who was well aware of the ongoing litigation between the plaintiff and the defendants no.3 and 4. That the defendants no.3 and 4 are the illegal occupants of the suit property. They do not have any right, title or interest in the suit property and therefore, they do not have right to get basis amenity/electricity connection in their names in illegal manner. That the plaintiff is the original owner of the suit property having absolutely all right, title and interest in the property in question. The plaintiff is the most aggrieved person, his obligatory rights are encroached with the illegal act and conduct of the defendants and would suffer an irreparable loss and injury which cannot be compensation is term of money if restored electricity supply and instated electricity meter is not removed from the suit property. That the plaintiff was left with no efficacious remedy available to him except approaching Court for getting the required remedy by way of this suit for declaration, mandatory, prohibitory and permanent injunction. That the plaintiff has a good prima facie case and balance of convenience also lies in his favour and CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 4 of 30 against the defendants. That the plaintiff being directly affected and being aggrieved person has a locus standi to file this suit for declaration, mandatory, prohibitory and permanent injunction. Hence, the present suit.
2. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court upon which the defendants had put appearance through their respective Counsels and thereafter the matter was listed for filing of Written Statements on behalf of defendants.
3. Written statement has been filed on behalf of defendant no.1, wherein it is stated that the plaintiff has sought the primary relief of cancellation of those alleged forged and fabricated documents on the basis of which the defendant no.3 has got installed electricity connection in his favour. As such the suit filed in the present form directing the answering defendant to remove the supply of electricity of the above said premises is not maintainable. That as per record the Faizan Qureshi/Defendant no.3 has applied for sanction/installation of new electricity connection being lawful occupant of the second floor of the abovesaid premises and alongwith his application he submitted his PAN card, Election Card and Aadhar Card besides executing an affidavit. After completion of commercial formalities and as per DERC Guidelines, electricity connection has been installed in the name of the defendant no.3. It is submitted that in the declaration/agreement, the defendant no.3 also declared that in case any statement proves to be false or incorrect at any later stage, supply to the premises without any prior notice, therefore unless the documents on the basis of which the electricity connection is sanctioned are declared as cancelled, the electricity connection cannot be disconnected. That as per averments in the plaint, there is inter-se dispute between CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 5 of 30 the plaintiff and defendants no.3 and 4 about the possession of the second and third floor of the abovesaid property and the answering defendant has nothing to do with the dispute between them. As such the suit filed against the answering defendant is without any cause of action. That as per record, an inspection was carried out in the premises at 7461, 2nd Floor, Gali Choti Masjid Qasabpura, Delhi-110006 and the user Zara W/o Faizan was found indulging in direct theft and accordingly a direct theft bill of Rs.57,904/- has been raised, however, the direct theft bill has been settled by defendant no.3 before the Permanent Lok Adalat-1 vide settlement order dated 20.12.2016 and defendant no.3 agreed to make the payment in installments and on making the first installment of Rs.14,750/- the new electricity connection was agreed to be released and has already released in favour defendant no.3 vide electricity connection bearing CA no.152071539. However, it is submitted that according to the orders of PLA the defendant no.3 has also to make the payment of settled amount in two installments of Rs.10,000/-each on or before 30.01.2017 and 28.02.2017 respectively. The defendant no.3 failed to pay the same, as such, as per the default clause in settlement order dated 20.12.2013, the defendant no.3 is required to pay the entire amount of Rs.57,904/- failing which the electricity connection is liable to be disconnected. In this regard disconnection notice dated 28.03.2017 has already issued by the answering defendant. That the electricity connection has been sanctioned in favour of the defendant no.3 as he is in occupation of the suit property as per DERC Guidelines. That the official of the answering defendant have no authority to adjudge the document and it is the competent court of law which can decide upon the documents submitted by the consumer/applicant. That the answering defendant has installed the electricity connection as per the DERC guidelines and after completion of commercial formalities by the applicants i.e., the defendants no.3 and 4 herein. That as per the CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 6 of 30 record the plaintiff has not made any grievance on 24.01.2017 as alleged. That defendant is a licensee supplying electricity in the area assigned to it and has nothing to do with the inter se dispute between the plaintiff and defendants no.3 and 4, who are alleged to be in possession of the suit property illegally. That the suit filed by the plaintiff is without any cause of action against the answering defendant. That no cause of action ever arose in favour of the plaintiff and against the answering defendant to file the present suit.
4. Written Statement has been filed on behalf of defendant no.3, wherein it is stated that the present suit is not maintainable as the plaintiff has got no locus standi to file the present suit as he has not been able to show as to how he is aggrieved by the electricity connection provided in favour of the defendant no.3. That the present suit is not maintainable under the provisions of Section 41(j) of Specific Relief Act. That an essential utility as electricity is within the broad sweep of the right to life guaranteed under Article 21 of the constitution, as such, the present suit is not maintainable. That plaintiff has got no cause of action in respect of the suit property. That defendant cannot be deprived of the essential commodity i.e., electricity. That the present suit is not maintainable as the defendant no.3 is in possession and occupation of the second floor of the property in question since 2012 and the he has already paid the complete sale consideration to the plaintiff and his partner Mr. Babar long back, therefore, plaintiff has no right, title or interest remains in the suit property. That plaintiff has not stated true and correct facts before this Court. That plaintiff is not entitled to any relief. That plaintiff is also guilty of suppression of material facts and as such the present suit deserves dismissal. That plaintiff has not approached this Court with clean hands. That plaintiff along with his partner/friend namely Mr. Babar had represented to the CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 7 of 30 defendant no.3 that they are the owners of second floor portion (Portion A) of the property bearing no. 7460, Gali Chhoti Masjid, Quresh Nagar, Sadar Bazar, Delhi- 110006 and will sell the same to him for a total sale consideration of Rs. 13,00,000/-. That accordingly, the defendant no.3 arranged the amount of Rs. 10,00,000/- after selling the property of his mother and the same had been paid to the plaintiff and his friend namely Mr. Babar on 13.03.2012 and accordingly the plaintiff and his friend have handed over the possession of the said portion to the defendant no.3. That defendant no.3 had requested them several times to execute the sale documents/title documents in favour of defendant no.3 but they postponed the said request on one pretext or the other. That they always told to the defendant no.3 that "as we have already handed over the possession of the said portion to you, therefore, you need not to worry at all and we would execute the title documents of the said portion in your favour very soon.". That the plaintiff and said Mr. Babar had asked the defendant no.3 for balance sale consideration in the month of February 2014 and the defendant no.3 had paid the remaining sale consideration of Rs. 3,00,000/- to the plaintiff and his friend namely Mr. Babar in the month of February 2014 itself. That the defendant no.3 has paid the full sale consideration to the plaintiff and his friend namely Mr. Babar, but the plaintiff did not execute the title documents in his favour. The he had requested them several times for execution of the title documents of the second floor of the property but in the month of October 2015, the plaintiff and his friend had refused to execute the title documents. That defendant no.3 finding no other way, had to get issued a legal notice through his advocate to the plaintiff and Mr. Babar dated 07.12.2015, by which the plaintiff and Mr. Babar were called upon to execute the sale deed/title documents in respect of second floor portion of the property bearing No. 7460, Gali Chhoti Masjid, Quresh Nagar, Sadar Bazar, Delhi-110006 in favour of CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 8 of 30 defendant no.3 but the plaintiff did not execute the title documents of the property in question till date, however, the plaintiff and Mr. Babar have received the complete sale consideration from the defendant no.3. That defendant no.3 cannot be deprived of the essential commodity i.e., electricity. That the question of threatening to the plaintiff by defendant no.3 does not arise at all and the plaintiff is making concocted story just to mislead this Court. That defendant no.3 has purchased the floor in question after paying the full sale consideration, therefore, the question of vacating the same does not arise. That the present suit is not maintainable.
5. Written statement has been filed on behalf of defendant no.4, wherein it is stated that the present suit is not maintainable as the plaintiff has got no locus standi to file the present suit as he has not been able to show how he is aggrieved by the electricity connection provided in favour of the defendant no.4. That the present suit is not maintainable under the provision of Section 41(j) of Specific Relief Act as the plaintiff has got no personal interest in respect of the suit property and as such plaintiff cannot be permitted to file the present suit. That electricity as an essential utility is within the broad sweep of the right to life guaranteed under Article 21 of the Constitution. That every citizen has right to electricity. That plaintiff has got no cause of action in respect of suit property. That the present suit is not maintainable because the defendant no.4 is in possession and occupation of third floor of the property in question since 2012 and the has already paid the complete sale consideration to the plaintiff and his partner Mr. Babar long back, therefore, the plaintiff has no right, title or interest remaining in the suit property. That plaintiff has not stated the true and correct facts before this Court, therefore, the plaintiff is not entitled to any relief from this Court. That plaintiff is also guilty CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 9 of 30 of suppression of material facts and as such the present suit is liable to be dismissed. That plaintiff along with his partner/friend namely Mr. Babar had represented to the defendant no.4 that they are the owner of the third floor (portion A) of the property bearing No. 7460, Gali Chhoti Masjid, Quresh Nagar, Sadar Bazar, Delhi-110006 and they want to sell the said portion to the defendant no.4, as such, the defendant no.4 agreed to purchase the said portion of third floor (portion A) of the property bearing No.7460, Gali Chhoti Masjid, Quresh Nagar, Sadar Bazar, Delhi-6 for a total sale consideration of Rs. 14,00,000/- and accordingly, the defendant no.4 had arranged the amount of the sale consideration and the same had been paid to the plaintiff and his friend namely Mr. Babar in the month of June 2012 and accordingly the plaintiff and his above-named friend have handed over the possession of the said portion to the defendant no.4 after receiving the complete sale consideration on 20th June, 2012. That defendant no.4 had requested them several times to execute the sale documents/title documents in her favour but they postponed the same request on pretext or the other. That defendant no.4 had to get issued a legal notice through her advocate to the plaintiff and Mr. Babar dated 03.12.2015 by which the plaintiff and Mr. Babar were called upon to execute the sale deed/title documents in respect of third floor portion (Portion A) of the property in question in favour of defendant no.4 but the plaintiff did not execute the title documents of the property in question till date, however, the plaintiff and Mr. Babar have received the complete sale consideration from defendant no.4. That the defendant no.4 is in occupation/possession of the third floor of the suit property and cannot be deprived of the essential commodity i.e., electricity. That the present suit is not maintainable.
6. Separate replications were filed on behalf of the plaintiff to the written CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 10 of 30 statement filed on behalf of Defendants No.1,3 & 4, wherein all the averments made in the plaint were reaffirmed and contents of respective written statements of defendants were denied.
7. On completion of pleadings, following issues were framed in the present matter by Ld. Predecessor of this Court on 11.04.2018:-
1.Whether the plaintiff is entitled for decree of declaration, mandatory, prohibitory and permanent injunction declaring the electricity supply and installation of the meter in the suit property illegal, directing the defendant to remove the supply of electricity, to remove the electricity meter illegally restored in the suit property bearing No. 7461, 2nd and 3rd Floor, Gali Madar Wali, Near Chhoti Masjid, Quresh Nagar, Sadar Bazar, Delhi-110006 and restraining the defendants from committing illegal activities, as prayed for? OPP
2. Whether the suit is not maintainable as the plaintiff is not having any personal interest in the suit property? OPD3&4
3.Whether the suit is not maintainable in the present form as the relief of declaration in respect of documents which are alleged to be forged and fabricated has not been sought by the plaintiff? OPD-1
4. Relief.
Evidence:-
8. Thereafter the matter was listed for recording of plaintiff's evidence. In order to prove his case, the plaintiff got examined himself as PW-1. PW-1 tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:-
Ex.PW1/1(OSR) : Complaint dated 05.12.2015.
CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 11 of 30
Ex.PW1/2(OSR) : Two complaints dated 27.01.2017 made to BSES
& Delhi Police.
Mark A : Copy of Order of permanent Lok Adalat dated
20.12.2016.
PW-1 was duly cross examined.
The PE was closed on 07.02.2019 vide separate statement of plaintiff. Thereafter the matter was listed for defendant's evidence.
9. In defendant's evidence on behalf of defendant No.1, Sh. Paramjeet Panwar was examined as D1W1. D1W1 tendered his evidence by way of affidavit Ex. D1W1 and relied on the following documents:-
Mark A : Copy of PLA order dated 20.03.2016. Mark B : Copy of electricity bill. Mark C : Copy of notice dated 28.03.2017. Mark D : Copy of new electricity connection form/agreement. Mark F : Copy of PAN card of plaintiff. Mark G : Copy of Election Card of plaintiff. Mark H : Copy of Aadhar Card of plaintiff.
D1W1 was duly cross examined. Certain documents were put to D1W1 during cross examination which are Ex.DW1/D3P1, Ex.DW1/D3P2, Ex.DW1/D3P3, Ex.DW1/D3P4, Ex.DW1/D3P5, Ex.DW1/D3P6, Ex.DW1/D3P7, Ex.DW1/D3P8(colly) and Ex.DW1/D3P9(colly).
Thereafter evidence on behalf of defendant no.1 was closed on 24.04.2019 on separate statement of Ld. Counsel for defendant no.1.
In evidence on behalf of defendant no.3, Sh. Faizan Qureshi was examined CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 12 of 30 as D3W1. D3W1 tendered evidence by way of affidavit Ex. D3W1/A and relied on the following documents:-
Ex.D3W1/1(OSR) : Copy of election I card bearing No. TUF1805316.
Ex.D3W1/2(OSR) : Copy of Adhar Card.
Ex.D3W1/3(OSR) : Copy of complaint to the SHO, PS Sadar Bazar
dated 25.01.2015.
Ex.D3W1/4(OSR) : Copy of legal notice dated 07.12.2015.
Ex.D3W1/5(OSR) : Postal receipt.
Ex.D3W1/6(OSR) : Copy of order/settlement dated 20.02.2016.
Ex.D3W1/7(OSR) : Copies of new connection DIN along with
payment receipts of all the charges(colly).
Ex.D3W1/8(OSR) : Copy of electricity bill dated 18.02.2017.
Ex.D3W1/9(OSR) : Copy of legal notice received from Mohd Babar
dated 12.11.2014.
D3W1 was duly cross examined.
In evidence of behalf of defendant no.4, Ms. Shamim Bano was examined as D4W1. D4W1 tender evidence by way of affidavit Ex. D4W1/A. D4W1 relied on the following documents:-
D4W1/1(OSR) : Copy of election I card bearing No.
DL/05/159/057463.
D4W1/2(OSR) : Copy of Aadhar Card.
D4W1/3(OSR) : Copy of complaint to SHO, PS Sadar Bazar.
D4W1/4(OSR) : Copy of legal notice dated 03.12.2015.
D4W1/5(OSR) : Postal receipt.
D4W1/6(OSR) : Copy of order dated 04.01.2017.
D4W1/7(OSR) : Copy of order dated 15.01.2017.
CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 13 of 30
D4W1/8(colly)(OSR) : Copies of new connection DIN along with
payment receipts of all the charges.
D4W1/9(OSR) : Copy of electricity bill dated 18.02.2017.
D4W1/10(OSR) : Copy of legal notice dated 12.11.2014
received from Mohd Babar.
D4W1 was duly cross examined. Thereafter, evidence on behalf of defendant no.4 was closed on 29.07.2022 on separate statement of defendant no.4 and the matter was fixed for final arguments.
10. Final Arguments were heard at length and the record is carefully perused by this court.
After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record and after hearing the submissions of all the sides, my issue wise finding in the present matter is as follows:
Issue No.1:-Whether plaintiff is entitled to decree of declaration, mandatory, prohibitory and permanent injunction, declaring the electricity supply and installation of meter in the suit premises as illegal, directing the defendant to remove the supply of electricity, to remove electricity meter illegally restored in the suit property bearing No. 7461, Second and Third Floor, Gali Madar Wali, Near Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi-6 and restraining the defendants from committing illegal activities as prayed for? OPP
11. The burden to prove the present issue is on plaintiff. It is the case of plaintiff that he is the owner/purchaser of ground floor, mezzanine floor, second and third floor of property bearing No. 7461, Gali Madar Wali, Near Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi-6 and that defendants no.3 & 4 are illegal CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 14 of 30 occupants/trespasser of second and floor respectively of the suit property. That on 12.12.2015, officials of BSES raided the suit property and defendants no.3 & 4 were booked for theft of electricity and a bill of Rs. 57904/- was raised by BSES. That the aforesaid bill was settled by defendants no.3 & 4 before Permanent Lok Adalat vide Order dated 20.12.2016 (Mark A). That defendant no.1 restored the electricity supply to the premises occupied by defendants no.3 & 4 on 24.01.2017 despite objections by the plaintiff and that he has not been heard before the Permanent Lok Adalat before passing of the terms of settlement. It is the case of plaintiff that electricity supply to the portion in occupation of defendants no.3 & 4 has been restored in an illegal manner on the basis of forged documents, without completion of commercial formalities. It is further the case of plaintiff that officials of defendant no.1 did not make any verification of the forged documents of the suit property and without obtaining any NOC from the owner i.e., from plaintiff. Plaintiff has also averred that electricity supply to the portion of defendants no.3 & 4 has been restored without getting any inspection report, demand note and without deposit of the amount of settlement arrived before the Permanent Lok Adalat. That plaintiff had made a complaint dated 27.01.2017 (Ex. PW1/2) to the officials of BSES against grant of electricity connection to defendants no.3 & 4. It is the case of plaintiff that the plaintiff being the owner of the suit property is aggrieved by the illegal acts of the defendants.
12. All the contesting defendants to the present suit have not denied that a theft bill with case ID YM121215CA020/PHG was settled before the Permanent Lok Adalat vide order dated 20.12.2016 by defendant no.3 and as per the terms of settlement, petitioner was to pay a sum of Rs. 34,750/- as amount for full and final settlement against the impugned bill. Rs. 14,750/- was to be paid on or before CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 15 of 30 30.12.2016 and the remaining balance of Rs. 20,000/- was to be paid in equal monthly installments. It was further agreed that on deposit of amount of Rs. 14750/-, request of the petitioner i.e., defendant no.3 for release of new connection was to be processed.
13. It is the case of defendant no.1/BSES that defendant no.3 had applied for installation of new electricity connection being the lawful occupant of the second floor of the suit property. That along with his application for new connection, he has submitted his PAN Card, Election Card, Aadhar Card and has also executed an affidavit. That after the completion of commercial formalities and as per the DERC guidelines, electricity connection was installed on 24.01.2017 at second floor of the suit property in the name of defendant no.3. That plaintiff had made a complaint on 27.01.2017 in the office of defendant no.1 only after the new electricity connection has already been installed in the suit property in the name of defendant no.3. Defendant no.1 has further submitted that there is inter se dispute between plaintiff and defendants no.3 & 4 with respect to ownership of the suit premises.
14. It is the case of defendants no.3 & 4 that plaintiff has no locus standi to file the present suit and that the present suit is barred as per Section 41(j) of Specific Relief Act, 1963 as plaintiff has no personal interest in the suit property. That plaintiff along with his partner/friend namely Mr. Babar had represented to the defendants that they are the owner of the second and third floor of the suit property and they want to sell the said portion. That both defendants no.3 & 4 had paid the agreed sale consideration to the friend of plaintiff i.e., Mr. Babar and that plaintiff and Mr. Babar had handed over the possession of the second floor and third floor CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 16 of 30 of the suit property to defendant no.3 & 4 respectively. That despite repeated requests of defendant, plaintiff has not executed the title documents in favour of the defendants no.3 & 4.
15. Defendant no.1 has examined Mr. Paramjeet Panwar, Manager (Power Supply), Division Paharganj, BSES YPL New Delhi as D1W1. D1W1 has relied on documents Ex.DW1/D3P8 in respect of CA No. 152071539 in the name of defendant no.3 and the documents Ex.DW1/D3P9 in respect of CA No. 152081049 in the name of defendant no.4. It is the case of defendant no.1 that as per DERC regulations on the basis of proof of occupation, electricity connection is sanctioned in the name of the applicant and in the instant case PAN Card (Mark F), Election Id (Mark G) and Aadhar Card (Mark H) were submitted by defendant no.3 to show his occupation of the second floor of the suit premises and that similarly defendant no.4 has submitted her election ID and Aadhar Card (Ex.DW1/D3P9(colly)) to show her occupation of the third floor of the suit property. Therefore, it is clear from the case set up by defendant no.1 that electricity connection was granted to defendants no.3 & 4 being the occupants of the second and third floor of the suit property.
16. Section 43(1) of the Electricity Act, 2003 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. Chapter 3 of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards) Regulations, 2017 deals with New and Existing Connections. As per regulation 10 (2) of DERC Regulations, any of the following documents shall be accepted as proof of CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 17 of 30 identity:-
(i)Electoral Identity Card;
(ii)Passport;
(iii)Driving Licence;
(iv)Ration Card having photograph;
(v)Aadhar Card;
(vi)PAN Card;
(vii)Photo Identity Card issued by any government Agency;
(viii)If the applicant is an organization, certificate of Incorporation/Registration issued by the Registrar and proof of authorisation/resolution of Board for authorising the person.
17. Regulation 10(3) further provides that any of the following documents shall be accepted as the proof of ownership or occupancy of premises.
(i)Certified copy of title deed;
(ii)Certified copy of registered Conveyance Deed;
(iii)General Power of Attorney (GPA);
(iv)Allotment Letter/Possession Letter;
(v)Valid Lease Agreement along with undertaking that the lease agreement has been signed by the owner or his authorised representative;
(vi) Rent receipt not earlier than three months along with undertaking that the rent receipt has been signed by the owner or his authorised representative;
(vii)Mutation Certificate issued by a government body such as Local Revenue Authorities or Municipal Corporation or land-owning agencies such as DDA/L&DO;
(viii) Sub Division Agreement;
CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 18 of 30(ix)For bonafide consumers residing in JJ clusters or in other areas with no specific municipal address, the licensee may accept either ration card or electoral identity card mandatorily having the same address as a proof of occupancy of the premises.
18. D1W1 i.e., Manager (Power Supply) BSES has deposed in his cross examination that no copy of title deeds of the suit property, NOC of landlord or rent agreement is on record. The witness has also deposed that defendant no.3 did not apply as a tenant and therefore the electricity connection form (Mark D) does not bear the signatures of landlord but instead bears the signatures of the applicant/defendant no.3. On inspection of documents filed in respect of the electricity connection in the name of defendant no.3 Ex.DW1/D3P8 and in the name of defendant no.4 Ex.DW1/D3P9, it is clear that the applicants did not file any proof of ownership of the suit property or any possession letter. It is further clear that defendants no.3 and 4 did not apply for electricity connection as tenants of the suit property and as such no Lease Agreement or rent receipts were filed along with application for sanction of connection. Ld. Counsel for plaintiff has argued that defendants no.3 & 4 never filed any copy of Ration Card, Title Deed, NOC of landlord, rent receipts, Rent Agreement etc., showing that they are in legal occupation of the suit property.
19. It is worthwhile to mention here that plaintiff has admitted in his cross examination that defendants no.3 & 4 are in occupation of second and third floor respectively of the suit property since 2012-2013. Therefore, plaintiff has not denied the occupation of suit property by the defendants. Section 43 of the Electricity Act, 2003 entitles an "occupier" to the supply of electricity. Ld. Counsel for plaintiff has argued that both defendants no.3 & 4 have admitted in CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 19 of 30 their cross examination that they do not have any document of ownership in their favour as no such documents were executed and that defendants no.3 and 4 are illegally residing in the suit property and hence, they are not entitled to any electricity connection.
20. In order to counter the submissions made by Ld. Counsel for plaintiff, Ld. Counsel for defendants no.2 and 3 has submitted that even an unauthorized occupier of the premises is entitled to essential amenity of electricity and in the instant case, defendants no.3 and 4 are in lawful possession of their respective portions. Ld. Counsel has relied on the judgment Abhimanyu Mazumdar vs Superintending Engineer and Another AIR 2011 Cal. 64, wherein the Hon'ble High Court of Calcutta has dealt with the question as to whether unauthorized occupiers, encroachers of any premises and squatters of any premises are legally entitled to file an application under Section 43 of the Electricity Act, 2003 claiming status as 'occupier' and thereby may seek supply of electricity in the premises as constructed on encroaching the land; and what is meaning of word 'occupier' in said Act on reflection of Rule 2006?. The relevant portion of the judgment is reproduced as follows:
"But the Works of Licensees Rules, 2006 framed under the aforesaid Act came into force in the year 2006 and according to the definition of "occupier" as provided in Rule 2(b) unless the context otherwise requires, the occupier of any building or land means a person in lawful occupation of that building or land. According to sub-rule (2), all other words and expressions used in the Rules and not defined in these Rules should have the meanings respectively assigned to them in the Act.
..It appears from record that in exercise of the powers conferred under Clause CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 20 of 30
(e) on sub-Section (2) of Section 176 read with sub-Section (2) of Section 67 of the Electricity Act, 2003, the Central Government made the Works of Licensees Rules, 2006 for the purpose of carrying out the object of the Act enabling the licensee to carry out the works which they are authorized to do.
From the Rules it appears that there is no provision therein for deciding the question as to whether a person is a lawful occupier in the land or building if any such dispute arises in a given situation. All that is provided in the Rules is that for the purpose of carrying out the works, a licensee should take permission of either the owner or the lawful occupier of the land or building over which any work would be done. Thus, if it is in occupation of the owner himself, permission should be taken from the owner and if the owner is not in actual physical possession, permission should be taken from the lawful occupier of the land or building and not from the owner. The Rules do not provide for deciding any dispute between the owner and the lawful occupier on the question whether the occupation of such occupier is lawful or not. The Rules, on the other hand, prescribe the procedure for resolving the dispute between the licensee in one hand and the owner or the occupier on the other, regarding alteration of work or fixation of support etc or payment for compensation by the licensee to the owner or the occupier, as the case may be. In our opinion, by the word "lawful occupier" introduced in the Rules, the legislature intended to mean the "actual occupier in settled possession" of the property and the licensee is required to take the permission of such a person in settled possession of the property if the property is not in possession of the owner. Whether the occupation of a person on a property is lawful or not can only be decided by a competent forum prescribed by law. It was never the intention of the legislature in defining the word "occupier" as "lawful CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 21 of 30 occupier" to ask the licensee to take permission before undertaking any work from the person in occupation, if such person is not the owner, after being satisfied that such occupier has been declared as "lawful occupier" by a competent forum prescribed by law.
...According to the law in India, a person in settled possession of immovable property cannot be dispossessed otherwise than by due process of law and such a person, in settled possession, although the commencement of such possession was unlawful, can restrain even the lawful owner from disturbing his settled possession otherwise than in due process of law. When the Rules of 2006 were introduced, the legislatures had in their mind the aforesaid concept of settled possession which was capable of being defended against any threat of dispossession, even at the instance of the owner, except by due process of law as laid down by the Supreme Court and consequently, introduced the definition of the word 'occupier' as lawful occupier without further defining the word "lawful" therein. Therefore, in the absence of any definition of the word "lawful" in the Rules of 2006, we should apply the principle of "settled possession" laid down by the Supreme Court to the phrase "lawful occupier" appearing in the Rules for implementation of the object of the Electricity Act, 2003 to construe the same as a person in "settled possession" whose possession can be defended against the threat of dispossession otherwise than due process of law even by the lawful owner.
We, therefore, hold that a person in settled possession of a property as illustrated in the case of Rame Gowda (supra), is free to apply for supply of electricity without the consent of the owner of the same and is entitled to get electricity and enjoy the same until he is evicted by due process of law."
CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 22 of 3021. Ld. Counsel for defendants no.3 & 4 has also relied on the judgment in Dr. Emajuddin Ahmed vs CESC Ltd and Another decided on 22.12.2009 to the following effect:
"In Santosh Jaiswal vs. CESC Limited & Ors.: (2008) 4 CHN 630, this Court upon consideration of a number of earlier conflicting decisions of this Court (even of Division Benches) has held upon interpretation of the Electricity Act, 2003 and more particularly Section 43 thereof as follows :
"None can dispute that electricity is an essential service without which it is difficult to survive. Right to live a meaningful life and with dignity is one of the basis postulates of Article 21 of the Constitution. The right guaranteed under Article 21 is the fundamental of all fundamental rights enshrined in Chapter III of the Constitution. One cannot be deprived of such right only on the basis of an unestablished accusation that he is a trespasser which, as held in Soumitra Banerjee (supra), is commonly used as a tool or means of putting extraneous pressure for resolving civil disputes. Supply of electricity to such alleged trespasser by a licensee would neither prejudice in any manner the owner's right to have an order of eviction passed against him nor would it make any difference so far as status of the alleged trespasser is concerned. The licensee's duty is to sell electricity provided formalities are complied with. There is no justification to hold that lawful occupation of a portion of the premises is a pre- condition for obtaining supply. If the right of an owner to object to electricity being supplied to an occupier of his premises by the licensee is to be conceded on the ground that the occupier has illegally or unauthorisedly taken possession, that would necessarily lead to clothing the licensee with the right to adjudicate the occupier's right to enjoy the property CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 23 of 30 which this Court is inclined to hold is not the legislative intention. The laws of the country provide for adjudication of such issue by an appropriate forum. If there is any flaw in the statute or the phrasing is defective and the need to mend it arises, it is only the legislature that can amend it. It is the function of the Courts to expound and not to legislate is settled law. Keeping in view the scheme of the new Act, reading the word lawful before the word 'occupier' would amount to legislation by Court which is impermissible. The said decision has been noticed in Fashion Proprietor Aswani Kumar Maity vs. West Bengal Electricity Distribution Co. Ltd.: AIR 2009 Calcutta 87 and the learned Judge took the same view upon consideration of two other conflicting decisions of Division Benches of this Court."
22. In this context reference may also be made to the judgment titled as Fashion Proprietor Aswani Kumar Maity Vs. West Bengal State Electricity Distribution Co. Ltd. reported as 2009 (4) ICC 502 wherein the Hon'ble High Court of Calcutta had held:
"....If the law of the land provides that a person in possession of any premises may not be dispossessed therefrom except in accordance 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"
23. Reference may be made to the case of M.K. Acharya Vs. C.M.D, W.B. State CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 24 of 30 Electricity Distribution Co. AIR 2008 Cal. 47. In that case, the Hon'ble Calcutta High Court held that a permissive occupier or a licensee is entitled to grant of electricity connection. It was emphasized that the supply of electricity is a basic necessity and that the right to obtain electricity is part of the right to life and liberty guaranteed by Article 21 of the Constitution of India.
24. In the Judgment titled as Amarendra Singh Vs. 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...."
25. In the judgment of T.P. AEC Ltd. Vs. S. (Rakhial) C. Co-op Housing Society Ltd." reported as AIR 2006 GUJARAT 190 (DB) it was held:
"...19. Prima facie, I am of the considered opinion that the Plaintiff is the owner/occupier of the suit premises within the meaning and contemplation of Section 43 of the Electricity Act, 2003 and therefore the defendant/distribution licensee is under an obligation to provide separate electricity connection to the Plaintiff...."
26. Coming to the facts of the present case, Ld. Counsel for plaintiff has argued that in her affidavit of evidence, defendant no.4 has mentioned her address as that of property no. No. 7460, Gali Madarwali, Near Choti Masjid, Quresh Nagar, CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 25 of 30 Sadar Bazar, Delhi-6. This argument on Ld. Counsel for plaintiff is of no consequence as plaintiff has himself admitted that defendants no.3 & 4 have been occupying the second and third floor of the suit property since 2012-2013. It is clear from the afore cited judgments that an occupier in the settled possession of the property cannot be denied the essential amenity of electricity. From the various documents filed on record it is clear that defendant no.1 has sanctioned electricity connection in the name of defendants no.3 & 4 on the basis of various documents such as PAN Card, Election Id and Aadhar Card filed by the applicants showing their occupancy of the suit property. Any dispute between plaintiff and defendants no.3 & 4 in respect to the validity of the occupation of the suit premises by defendant no.3 & 4 can be decided in a separate suit as the same is not under inquiry in the present suit but till then defendants no.3 & 4 cannot be prevented from enjoying the benefit of electricity connection. Till removed in accordance with law, possession of the suit premises by defendants no.3 & 4 is entitled to be protected and by necessary implication this Court cannot allow disconnection of the electricity connection installed at second and third floor of the suit property in the name of defendants no.3 & 4 respectively. For the same reasons, this court cannot direct defendant no.1 to remove the aforesaid electricity meters installed in the suit premises as the same will amount to indirectly dispossessing defendants no.3 & 4 from the suit premises. What is not permitted to be done directly cannot be allowed to be done indirectly. The protection that the law affords to defendants no.3&4, who admittedly are in possession of the suit property since 2012-2013, cannot be allowed to be circumvented or overreached by cutting of the electricity supply to their portions.
27. Ld. Counsel for plaintiff has argued that the officials of defendant no.1 did CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 26 of 30 not verify any documents filed by defendants no.3 & 4 with their application for new connection. That officials of defendant no.1 did not pay heed to the complaint made by plaintiff at the time of installation of the electricity connections in the name of defendants no.3&4. That despite being strong protests by plaintiff against the installation of electricity connection, the officials of defendant no.1 at the time of inspection and during installation of the connection had reported that there is no dispute at the site. Ld. Counsel for plaintiff has further argued that defendants no.3 & 4 never paid the settlement amount which was arrived before the Permanent Lok Adalat vide order dated 20.12.2016.
28. There is no substance in the averments of Ld. Counsel for plaintiff that BSES did not verify the documents relied on by defendants no.3 & 4 while applying for electricity connection as at page 14 of Ex.DW1/D3P8 (Acknowledgment of the DSS request Order) it has clearly been mentioned that original of the documents have been seen. Seeing the originals of the documents of the applicant in support of his application amounts to due verification of the documents by the licensee/BSES. Furthermore, D1W1 has deposed in his cross examination that during the process of sanction of new electricity connection in favour of defendant no.3, no objection was received in the office of BSES at the time of inspection and at the time of installation of electricity connection, no dispute was reported at site. Plaintiff has filed on record a copy of complaint dated 27.01.2017 (Ex.PW1/2) made to BSES. Ld. Counsel for defendant has objected to mode and manner of proof of document Ex.PW1/2. Without going into the question of proof of document Ex.PW1/2, it is pertinent to note here that complaint is dated 27.02.2017 and as per record, the date of energization of electricity meter bearing CA No. 152071539 in the name of defendant no.3 and electricity meter CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 27 of 30 bearing CA No. 152081049 in the name of defendant no.4 is 24.01.2017. Therefore, it is clear that there any objection raised by plaintiff for installation of the aforesaid connections was after the meters have already been installed. There is nothing on record to prove that plaintiff had objected before the electricity meters were installed in the suit property. Similarly, there is no substance in the plea of plaintiff that defendants no.3 & 4 did not comply with the terms of Lok Adalat settlement dated 20.12.2016 as defendants have placed on record the proof of payment of the settlement amount and the same is Ex.DW1/D3P1 and Ex.DW1/D3P2. The same clearly shows that defendant no.3 has paid the full settlement amount of Rs. 34,750/- to defendant No.1 in terms of settlement dated 20.12.2016. Therefore, it is clear that plaintiff has failed to discharge the burden to prove the present issue.
29. In light of the aforesaid discussion, the present issue is decided against the plaintiff and in favour of the defendants.
Issue No.2:-Whether the suit is not maintainable as the plaintiff is not having any personal interest in the suit property? OPD3&4
30. The burden to prove the present issue is on defendants no.3 and 4. Ld. Counsel for defendants has argued that though plaintiff claims to be the owner of the suit property but he has failed to file anything on record to substantiate his averments that he is the owner of the suit property. That in fact plaintiff has admitted in his cross examination that he is permanent resident of adjoining property No. 7460, Gali Madarwali, Near Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi-6. That in light of the aforesaid facts, the locus of the plaintiff to file the present is itself in question as plaintiff has failed to show any right, interest or CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 28 of 30 title in the suit property.
31. I find myself in agreement with submissions of Ld. Counsel for defendants. Though plaintiff has claimed to be the owner of the suit property, however, he has not placed on record any document to prove his ownership of the suit property. Plaintiff has deposed in his cross examination that he is in possession of the ground floor of the suit property but he has failed to file on record any document showing his possession over any part of the suit property. Therefore, plaintiff has failed to prove any right, title or interest in the suit property. Section 41(j) of the Specific Relief Act, 1963 provides that an injunction cannot be granted when the plaintiff has no personal interest in the matter. In the instant case, plaintiff has failed to prove any right or interest in the suit property and hence has failed to show how he is interested in the matter at hand. Plaintiff has no cause of action for seeking any injunctory relief against the admitted occupiers of the suit property thereby curtailing the rights of the occupier to enjoy the electricity supply. Accordingly, the present suit is also barred by Section 41(j) of the Specific Relief Act, 1963 as plaintiff has failed to show any personal interest in the matter.
32. In light of the aforesaid discussion the present suit is decided in favour of the defendants no.3 and 4 and against the plaintiff.
Issue No.3:- Whether the suit is not maintainable in the present form as the relief of declaration in respect of documents which are alleged to be forged and fabricated has not been sought by the plaintiff? OPD-1
33. Ld. Counsel for defendant no.1 has argued that though plaintiff has alleged that electricity connection has been sanctioned in the name of defendants no.3 & 4 CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 29 of 30 on the basis of forged and fabricated documents but plaintiff has failed to seek any relief in respect of those documents.
34. It is worthwhile to mention that plaintiff has deposed in his cross examination that he cannot tell which of the documents have been forged by defendants no.3 & 4 for obtaining connection from defendant no.1. It is clear that though plaintiff has alleged fabrication of documents by defendants no.3 & 4 but the same was only a vague plea. Ld. Counsel for defendant no.1 has failed to point any citation or authority to the effect that plaintiff was required to seek such a declaration/cancellation at the time of institution of the present suit especially when plaintiff is himself not aware about the identity of those documents.
35. Accordingly, the present issue is decided against the defendant no.1 and in favour of plaintiff.
Relief:-
36. In view of the foregoing discussion and the findings on the aforesaid Issues, the present suit filed by the plaintiff is dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due completion of formalities.
Announced in the open Court (NEHA GARG)
on this 31.08.2022. Civil Judge-01/Central,
Tis Hazari Courts/Delhi
CS SCJ No.435/2017 Mohd Zahid vs BSES & Ors. Page 30 of 30