Bombay High Court
Rupesh Dhirwani vs The Electricity Ombudsman,Mumbai And ... on 25 August, 2021
Author: M. S.Karnik
Bench: M. S.Karnik
16. wp 3540.21.doc
Urmila Ingale
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
URMILA
signed by
URMILA
PRAMOD
CIVIL APPELLATE JURISDICTION
PRAMOD INGALE
INGALE Date:
2021.08.27
20:28:29
+0530
WRIT PETITION NO. 3540 OF 2021
WITH
INTERIM APPLICATION NO. 1657 OF 2021
Rupesh Dhirwani .... Petitioner
Vs.
The Electricity Ombudsman, Mumbai and ors. ..... Respondents
Mr.Mayur Faria, for the Petitioner.
Mr.S.M. Gorwadkar, Senior Advocate a/w Mr.Yogesh Morbale,
Ms.Vaishnavi Gholave i/b Mr.Vinod P. Sangvikar, for Respondent
No.2 and for Applicant in IA/1657/2021.
Mr.Sandeep S. Jinsiwale, for Respondent No.3.
CORAM : M. S.KARNIK, J.
DATE : 25th AUGUST, 2021 P.C. :
. Heard learned Counsel for the Petitioner. The Petitioner by this Petition fled under Article 227 of the Constitution of India challenges an order passed by the Electricity Ombudsman, Mumbai appointed under the Maharashtra Electricity Regulatory Commission under Section 42(6) of the Electricity Act, 2003. It is the contention of the Petitioner that originally a Company by name Asian Electronics was functioning 1/7
16. wp 3540.21.doc in the plot no. 68 in MIDC area, Nashik. The power to the factory was supplied through the switchgear provided by Maharashtra State Electricity Distribution Company Limited (for short 'MSEDCL') which is situated in the said plot. It is the Petitioner's contention that the Petitioner entered into the conducting agreement sometime in the year 2013 with the Asian Electronics.
The electricity was being supplied through the switchgear which is in the said plot no. 68. There is dispute about the sub-division of the said plot according to the Petitioner. It is the contention of the Petitioner that their factory is situated in the sub-divided plot no. 68/4, but he has an agreement with Asian Electronics about the electricity being supplied through said switchgear situated in plot no. 68. It is the contention of the Petitioner that by virtue of the agreement entered into with Asian Electronics, it is the Petitioner who is entitled to utilize the electricity from the said connection.
2. There is no dispute that Asian Electronics went in liquidation. In proceedings fled before this Court in Company Petition, plot no. 68 over which Asian Electronics was situated was purchased by Respondent No.2 approximately for a sum of Rs.11 crores. They therefore applied to Maharashtra State Electricity Distribution Co. Ltd. (for short 'MSEDCL') for 2/7
16. wp 3540.21.doc transferring electricity connection of Asian Electronics situated on plot No. 68 in their name which was granted.
3. The Petitioner then approached the Consumer Grievance Redressal Forum, MSEDCL when injunction was granted in favour of the Petitioner on 09/08/2019. Then a representation came to be made by the Respondent No.2 vide Representation No. 162 of 2019 before the Ombudsman. The said representation has been allowed and electricity connection in the name of Respondent No.2 came to be confrmed. This order is challenged by way of this Petition.
4. There is no dispute that so far as plot no. 68 is concerned, the same stands in the name of Respondent No.2. Further, so far as sub-divided plot no. 68/4 is concerned, in that plot, the Petitioner is conducting its business pursuant to the agreement entered into between them and Asian Electronics. Now a dispute is being raised by the Petitioner that the plots are never sub-divided. Factually, it is seen that there are factories situated in the sub-divided portions in 68/1, 68/2, 68/4. Plot no. 68/3 is shown to be vacant. The Petitioner is carrying on its activities in plot No. 68/4.
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5. I have gone through the fndings recorded by the Ombudsman. A fnding of fact has been recorded that the switchgear electricity connection is situated in plot no. 68 which has been purchased by the Respondent No.2. By a reasoned order and after considering the matter in detail, the Ombudsman has made the following observations in paragraph 17 which reads thus :
"17. My observations from the above discussion is as follows:
(i) The Appellant is the lawful owner/ occupier of Plot No. 68.
(ii) The agreement is executed between Arun Babulal Shah on behalf of Asian Electronics Ltd. as the owner, and Mohanlal K. Pahuja and Rupesh Dhirwani together as Conductor ( Respondent No.2) on 14.05.2013. Company Petition No. 492 of 2011 is admitted on 27.04.2012 and its judgment is dated 13.11.2014. Therefore, the said agreement is during the litigation period of the Company Petition No. 492 of 2011.
(iii) The second Lease Deed dated 09.01.1992 is between MIDC and Asian Electronics Ltd. which mentions subdivision of Plot No. 68 admeasuring 20780 sq. mtr. into fve plots at the request of Lessee (Asian Electronics Ltd.). This being so, how the agreement dated 14.05.2013 between Asian Electronics Ltd. and the Respondent No.2 can be for a Plot admeasuring 20780 sq. mtr. when it has already been subdivided into fve plots. Moreover, this agreement is neither registered nor notarized. I am of the opinion, that, such agreements/transfer requires permission from MIDC. However, no such permission from MIDC Authority seems to have been taken before execution of such agreement. Neither any separate permission 4/7
16. wp 3540.21.doc letter is submitted before this Authority by the Respondent No.2. The original owner, Asian Electronics Ltd. appears to have created third party interest in the said property without valid permission from MIDC which is not allowed. Therefore, this agreement dated 14.05.2013 prima facie appears to be bad in law.
(iv) The Respondent No.2 submitted that power cable does not crossroad as no road as such exists. However, from the above table, it is clear that area of 1746 sq. mtr. has been surrendered for the access road by Asian Electronics Ltd. from 11970 sq. mtr. Therefore, the submission of Respondent No.2 is incorrect."
(emphasis supplied)
6. Having regard to the materials on record, it further appears that there is a road passing between plot no. 68 and plot No. 68/4. It is not as if an application was made by the Petitioner for electricity connection and that the said switchgear standing in the plot no. 68 was transferred in their favour. It is the contention that pursuant to the conducting agreement that the Petitioner had with the Asian Electronics, the Petitioner was authorised to use the electricity which they have been utilising all these years. The Petitioner has not placed any material to show that they ever applied for electricity connection or that the switchgear was transferred in their name. It is also seen from the location map produced that the switchgear is in plot No. 68 and 5/7
16. wp 3540.21.doc there is an internal road separating plot No. 68 (purchased by Respondent No.2) & 68(4) (which belongs to the Petitioner). Now it is tried to contend that the sub-division itself is illegal. This is a claim made by the Petitioner on the basis of a conducting agreement with Asian Electronics. The second lease deed between MIDC & Asian Electronics mentions sub-division of plot No. 68 into 5 plots. It is therefore not open for the Petitioner to take this stand contrary to the stand of Asian Electronics from under whom the Petitioner claims by virtue of conducting agreement. It is obvious that the said stand is taken to demonstrate that there is no sub-division, resultantly the switchgear situated in undivided plot No. 68 can be claimed by the Petitioner on the strength of the conducting agreement.
7. I see no perversity in the order passed by the Ombudsman so as to warrant interference. The Petition is dismissed. However, in the interest of justice, it is clarifed that in the event the Petitioner makes an application for grant of electricity connection for plot no. 68/4, the same be considered expeditiously by MSEDCL preferably within a period of 8 weeks from the date of the application. Further on the condition that the Petitioner clears all the electricity dues within one week from today, the Petitioner is permitted to utilise the electricity 6/7
16. wp 3540.21.doc connection for a period of 8 weeks from today to enable the Petitioner to make alternate arrangement and even learned Senior Advocate for the Respondent No.2 does not object to this arrangement. Learned Counsel for Respondent No.3 - MSCDCL assures this Court that if an application for grant of electricity connection is made by the Petitioner in the prescribed form, the same will be considered expeditiously in accordance with Rules.
8. In view of dismissal of the Petition, nothing survives for consideration in the interim application and the same stands disposed of.
(M.S.KARNIK, J.) 7/7