Gujarat High Court
Water Health India (P) Ltd Through & vs Uttar Gujarat Vij Company Limited ... on 24 July, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2991/2013 ORDER
]IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2991 of 2013
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WATER HEALTH INDIA (P) LTD THROUGH & 1....Petitioner(s)
Versus
UTTAR GUJARAT VIJ COMPANY LIMITED THROUGH & 3....Respondent(s)
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Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Petitioner(s) No. 1 - 2
MR SP HASURKAR, ADVOCATE for the Respondent(s) No. 1 - 2
MR RAKESH R PATEL AGP for the Respondent(s) No. 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/07/2014
ORAL ORDER
Heard Mr. Nangesh, learned advocate for the petitioners, Mr. Hasurkar, learned advocate for the respondent Nos.1 and 2, Mr. Patel, learned AGP for the respondent No.3, and Mr. Munshaw, learned advocate for the respondent No.4.
2. In present petition, the petitioner company has prayed, inter alia, that:-
"9a. Your Lordships be pleased to issue a writ of or in the nature of mandamus quashing and setting aside instruction / order dated 04-02-2013 (Annex- P) issued by the Respondent no.2, as being Page 1 C/SCA/2991/2013 ORDER illegal, unreasonable, unjust, inequitable and void.
b. In the alternative your Lordships be pleased to issue a writ of or in the nature of mandamus quashing and setting aside the order dated 04.02.2013 passed by the Respondent no.2 herein and further be pleased to hold that petitioners are not entitled to submit any NOC from the competent authority for issuance of electricity connection.
B-1. YOUR LORDSHIP may be pleased to issue a writ of or in nature of mandamus quashing and setting aside E Mail order dtd. 29/1/13 received under Right to Information Act at Annex.T in the interest of justice.
c. Your lordship may eb pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ/s, order/s, and/or direction/s quashing and setting aside the impugned order dated 04.02.2013 as being illegal, unreasonable,inequitable and void and further be pleased to direct the respondents herein to provide electricity supply to water purification plant."
2.1 The petitioner company is essentially aggrieved by the action of the respondent electricity company of disconnecting the electricity supply.
Page 2 C/SCA/2991/2013 ORDER
3. To support and justify the relief prayed for in the petition, the petitioner company has averred, inter alia, that:-
"3.2 It is humbly submitted that after discussing matter with the general meeting of the Panchayat and looking to the senatorial benefit of public at large, petitioner no.2 unanimously vide resolution no.7(2) dated 07.02.2012 resolved to provide place and water facility to set up "Community Water System" at Kanbha Village Water works...
3.3 It is humbly submitted that accordingly an agreement dated 07.03.2012 was entered into by and between petitioner no.1 and 2 herein on certain terms and conditions mentioned therein... It is humbly submitted that petitioner no.1 decided to charge Rs.9.00 as a minimum expenditure of purification of purified water for each 20 liter water Jar in the said agreement dated 07.03.2012.
3.4 It is humbly submitted that accordingly petitioner no.1 herein established R.O & U.V. System plant of water purification within four months at the place allotted by the Panchayat at the water-works...
3.5 It is humbly submitted that after completion of the said procedure, petitioner no.2 herein in a prescribed form applied for III phase electricity connection to respondent no.2 herein vide application no.962 dated 07.08.2012... Pursuant to Page 3 C/SCA/2991/2013 ORDER application made by the petitioner no.2, the respondent issued an estimated cost report in performa 13-B @ Rs.6729.00 for said electricity connection vide dated 08.08.2012...
3.6 It is humbly submitted that the applicant no.1 herein approached Respondent no.2 to make payment within prescribed time limit, however to the utter shock and surprise, respondent no.2 herein refuse to accept the amount of estimated cost. It is humbly submitted that respondent no.2 herein issued a letter dated 24.08.2012 and informed that his office has received objection in respect of the application for electricity connection and directed to provide explanation along with no objection certificate of the Talati of village...
3.7 It is humbly submitted that respondent also provided with the copy of the objection raised by the ex-member of the Kanbha Gram Panchayat herein, with malafide intentions, ulterior motives, due to enmity between the members of the Panchayat and only with a view to harass petitioners. It is submitted that the ex-member of the Panchayat also stated that the land allotted for water purification centre is a Gauchar land and is against the public interest. It is also alleged therein that the member of petitioner no.2 has passed the said resolution for their personal interest and gain...
3.8 It is humbly submitted that petitioner no.2 vide letter dated 04.09.2012 gave explanation to the objection raised by the ex-member of the Page 4 C/SCA/2991/2013 ORDER panchayat and requested to issue connection immediately... It is submitted that on 28.09.2012, petitioner no.1 informed to provide electricity connection to avoid any loss to the plant...
3.9 It is humbly submitted that considering the explanation provided by the petitioner no.2 herein, Respondent no.2 informed to apply afresh for electricity connection and hence In November 2012, petitioner no.2 once again applied for electricity connection to the Respondents herein. The petitioner no.2 also submitted letter of assurance declaring that there is no governmental dispute with regard to land in question and in case of any future dispute with regard to land in question, UGVCL - Respondents herein will not be responsible for the same...
3.10 It is humbly submitted that therefore petitioner no.2 herein once again applied afresh for electricity connection in a prescribed form to the respondent company by dated 21.11.2012. Pursuant to said application, respondent no.2 herein issued estimated cost for electricity connection... It is humbly submitted that petitioner no.1 herein deposited the amount of Rs.9171 to the Respondent Company on 27.11.2012. The Respondent Company also issued necessary receipts of the payment made by the petitioner no.1 herein and in response to the same, respondent no.2 herein issued a certificate of completion of work to the petitioner no.2 herein...
3.11 It is humbly submitted that the respondent Page 5 C/SCA/2991/2013 ORDER no,2 in similar fashion once again illegally, unauthorizedly and without any cause or basis and without application of mind issued a letter dated 15.12.2012 directing to provide "No Objection Certificate" so as to provide electricity connection...
3.12 It is humbly submitted that in response to the letter issued by the Respondent no.2 electricity company, petitioner no.2 met personally with the Respondent no.2 and draw attention that there is already a working power connection of 25HP load for submersible motor pump within 17 years. In panchayat water works. In the compound of this water works gram panchayat had allotted 50feet = 50 feet working space for the petitioner no-1 and for that panchayat making request for 7.0 HP additional electricity connection within the same premises, so there is no need for the NOC and the land is not gauchar land is Gamtal Plot and even if land is gauchar than by passing resolution no.S/254, which states that No Objection from the authority is not required since all the Gauchar lands are vested to the Gram Panchayats. It is humbly submitted that in view of the resolution passed by the government, Respondent no.2 on 26.12.2012 legally started electricity connection to the water purification plant. Petitioners state and submit that therefore the water purification plant came to be started for the common use of public at large.
3.13It is humbly submitted that the respondent company did not utter a word or raise objection till 28.01.2013, but to the utter shock and Page 6 C/SCA/2991/2013 ORDER surprise and in connivance of some politically strong persons, Village Helper of the respondent no.2 approach to the water purification plant in question for disconnection of the electricity. Upon knowledge of the said fact, Sarpanch - petitioner no.2 objected it and also informed the village helper that no notice has been issued for the said action of the respondent company.
3.14 That petitioner respectfully states and submits that as per the Notice from the Respondent Company, petitioner Panchayat file under taking to the company on 03-12-2012. A copy of the Notice and Affidavit Dated 03-12-2012 are here Annexure-N."
4. The respondent electricity company has appeared in response to the notice and the Dy. Engineer has filed an affidavit dated 26.4.2013 wherein, it is stated, inter alia, that:-
"4. Before I deal with the main contention raised in the petition, I humbly submit that the petition may not be entertained because after filing of this petition, despite the connection of petitioner company is disconnected, he is enjoying unauthorized electric supply without proper permission...
5. In the above set of circumstances, it is humbly submitted that since petitioner is enjoying unauthorized electric supply and has prayed for reconnection, the present petition may not be Page 7 C/SCA/2991/2013 ORDER entertained and dismissed. I humbly state that the petitioner does not deserve any indulgence from this Hon'ble High Court under article of 226 of Constitution of India.
6. Reply on the merits of the contention raised in the petition:
It is the petitioner's case that despite connection was granted to him, the same is unauthorizedly disconnected and, therefore, he has applied for reconnection of the said electricity connection. Pursuant to the above referred contention raised by the petitioner, it is humbly submitted that petitioner has applied through Kanbha Gram Panchayat for electric connection, requesting inter alia in Application form No.A1 that the connection be given at the place reflected in the said application... It is pertinent to note that the panchayat record reflects the place shown along with the application as that of Bhangiwas meaning thereby the place is not the same place where connection is requested for.
7. Along with the said application, undertaking is given to the UGVCL stating inter alia that if any loss is occurred on account of litigation, the same would be borne by the panchayat. It is submitted that the said undertaking is given by Ritaben Riteshbhai Patel who is not in good health, she has suffered a brain hemorrhage since last two months. Moreover, perusing the contents of the said undertaking it is apparent that the petitioner No.2 was very much within the knowledge that there is likely to be some dispute in the future because the Page 8 C/SCA/2991/2013 ORDER site on which connection is requested is not the same site where actual connection is given.
8. It is further pertinent to note that on 16-
10-12 a letter is addressed from the office of Taluka Development Officer to the office of Sarpanch and Talati-cum-Mantri, Kanbha Gram Panchayat regarding illegal action of entering into an agreement with private company and in that connection a detailed report is requested... It would be apparent from the letter and its enclosures that the said connection is apparently shown at the place belonging to the Gram Panchayat, however, in fact the connection is installed at a place not belonging to Gram Panchayat and, therefore, deponent has rightly disconnected the electric connection."
5. The respondent No.4 - District Development Officer, initially, filed affidavit dated 30.11.2013 wherein it is stated, inter alia, that:-
"2. It is most respectfully stated that the provisions of Section-99 of Gujarat Panchayat Act, 1993 are with regard to administrative powers of Gram Panchayats and Schedule-I thereof is with regard to duty of Village Panchayats to make provisions in different spheres. It is stated that Clause-1 of Schedule-I under Section-99 of the Act provides for supply of water for domestic use and for cattle. It is submitted that there is no specific provision or condition in the Act for Page 9 C/SCA/2991/2013 ORDER free supply of water to the villagers of Gram Panchayat. The Deponent craves leave to submit that provisions of Section-200 of the Act is with regard to levy of taxes and fees by Village Panchayat and Sub-Section-13 & 14 thereof are with regard to special water rate or free for supply of water. In other words, the Gram Panchayat has to make necessary arrangements for supply of water and it is empowered to charge requisite tax / fees.
3. The Deponent humbly submits that provisions of Section-5(4) of Gujarat Panchayat Act, 193 empowers the Gram Panchayat to enter into a contract and do all other things necessary for the purpose of the Act. In other words, it is open to the Gram Panchayat to enter into a contract to fulfill the statutory obligations.
4. The Deponent humbly submits that in the instant case a part of Gaucher land is used for R.O. Plant without any prior permission of the higher authority. It is humbly submitted that the area in question is the territorial justification of Ahmedabad Urban Development Authority and therefore, necessary permissions including Non Agricultural Usage Permission is to be obtained from District Collector, Ahmedabad. The Deponent craves leave to add that at present water supply is continued by Gram Panchayat from its own sources."
5.1 Subsequently, the said respondent No.4 Page 10 C/SCA/2991/2013 ORDER has filed further affidavit dated 30.12.2013 wherein it is stated, inter alia, that:-
"1.2 Kanbha Gram Panchayat has made provision for supply of water to the villagers and for that purpose it has constructed tube-well. It is stated that water from Panchayat tube well is carried to Govt. tube well and from the same it is provided house to house to all the families residing in the village through water supply pipe lines. It is submitted that 2 electric motors having capacity of 20 and 30 Horse Power are put up on two tube wells and it is taken to Sump and thereafter to overhead tank... It is submitted that Gram Panchayat is paying an amount of Rs.4500/- towards remuneration to the Bore Operator.
2. The respnt. no.4 submits that the Gram Panchayat has allowed petitioner here to put up R.O. Plants on Gamtal land bearing Block No.1 and the petitioner has established its R.O. Plants on the said land at its cost .... It is humbly submitted that the Gram Panchayat has permitted petitioner herein to establish its R.O. Plant without getting any Non-Agricultural permission or prior approval of the District Panchayat, Ahmedabad. Gram Panchayat is not collecting any rent or charge from petitioner. On inquiry it is found that the Gram Panchayat is providing water from its tube well to the petitioner without collecting any charge. It is submitted that petitioner has put up its R.O. Plants on the land admeasuring 42' x 28' and also put up a compound wall and wire fencing. The petitioner company has Page 11 C/SCA/2991/2013 ORDER also constructed a cabin as well as Room and at present it is non operational. The deponent submits that the petitioner used to draw water from the tank of Gram Panchayat by way of operating tube well of Gram Panchayat.
3. In view of the above mentioned facts and circumstances it is submitted that the Gram Panchayat is collecting waster tax from villagers as per the provisions of the Act and is providing house to house water supply from its water supply scheme. Hence it is clear that petitioner was drawing water from Water Supply Scheme of Gram Panchayat without paying any rent or charge to the Gram Panchayat and after purifying the same it was being sold in 10 - 20 litter bottles. It is stated that the plant is established on Gamtal land as per records available in Gram Panchayat and reported by Talati-cum-Mantri and the Gram Panchayat is not collecting any charge or rent for the same. The Gram Panchayat has also not obtained any permission from District Panchayat, Ahmedabad before entering into a contract/agreement with petitioner permitting use of gamtal land for the said commercial purpose. District Panchayat Ahmedabad has not given N.A.Use permission for the said land as per the records."
6. Any affidavit in counter to the affidavits filed by the electricity company or the respondent No.4 is not filed by the petitioner.
Page 12 C/SCA/2991/2013 ORDER Thus, the details mentioned in the reply affidavits by the electricity company and the respondent No.4 have remained uncontroverted.
7. Mr. Nangesh, learned advocate for the petitioners, submitted that the petitioner Nos.1 and 2 have entered into an agreement and it is in pursuance of the said agreement that the petitioner company has established RO Plant.
He also submitted that, on the same land, there is another electricity connection, which is granted to the Panchayat. Learned
advocate for the petitioners also claimed that though the Taluka Development Officer has mentioned in his letter that the land over which the petitioner No.1 has put up the RO Plant is gauchar land, in fact, the said land is not gauchar land, which is evident from the copy of the Form No.8, which is placed on record by the petitioners. He submitted that the electricity company has disconnected the supply without notice / hearing to the petitioners. On the said Page 13 C/SCA/2991/2013 ORDER ground, learned advocate for the petitioners assailed the action of the respondent electricity company.
8. Mr. Hasurkar, learned advocate for the respondent electricity company, submitted that the respondent electricity company has acted upon the instructions issued by the respondent authorities. Learned advocate for the respondent electricity company emphasized the details mentioned in paragraph No.6 and submitted that in view of the said facts, the request made by the petitioner company does not deserve to be granted. The details on which the learned advocate for the respondent electricity company relied on are, even at the cost of repetition, re-quoted hereunder:-
"6. ...Pursuant to the above referred contention raised by the petitioner, it is humbly submitted that petitioner has applied through Kanbha Gram Panchayat for electric connection, requesting inter alia in Application form No.A1 that the connection be given at the place reflected in the said application. Annexed to this petition and marked Annexure-"B" is copy of the said Page 14 C/SCA/2991/2013 ORDER application in the prescribed format. It is pertinent to note that the panchayat record reflects the place shown along with the application as that of Bhangiwas meaning thereby the place is not the same place where connection is requested for."
9. In addition to the objections raised by Mr. Hasurkar, learned advocate for the respondent electricity company, Mr. Munshaw, learned advocate for the respondent No.4, has also opposed the request made by the petitioners.
Mr. Munshaw, learned advocate for the respondent No.4, submitted that the land in question is gamtal land and that therefore, even otherwise, the petitioner company is not justified in putting up any construction, even kachcha construction over the gamtal land and/or to use the said land for operating the RO Plant, more particularly without obtaining any permission from competent authority and without getting plans sanctioned.
Mr. Munshaw, learned advocate for the respondent No.4, further submitted that, Page 15 C/SCA/2991/2013 ORDER actually, the respondent Panchayat is supplying water to the residents of the village, whereas the petitioner company is drawing the water from the system led by the Panchayat and thereafter, after drawing the water from the Panchayat's source and facility, the petitioner company is selling the water in 10 - 20 liter bottles.
10. From the above mentioned details, it appears that the petitioner Nos.1 and 2 are acting in collusion and the petitioner No.2 Panchayat has with unjust and improper intention passed the resolution only with a view to favouring the petitioner No.1. The resolution appears to have been passed with some extraneous consideration. When the petitioner Panchayat itself has its own water tank i.e. facility and system to supply water and is supplying the water to the residents, then, there was no justification to pass the resolution in favour of the petitioner No.1 and to allow the petitioner No.1 to put up RO Plants over the gamtal land. It Page 16 C/SCA/2991/2013 ORDER appears that without paying any tax, duty or charges and without even paying the price of the land and without seeking any permission or approval for setting of the RO Plants, the petitioner No.1 has put up the RO Plants, which seems to be in violation of the relevant provisions and regulations of the Panchayat as well as Act and Rules framed thereunder.
Besides this, for the reasons and facts mentioned by the respondent electricity company and respondent No.4 in the reply affidavits, which are not disputed by the petitioner company, the relief prayed for by the petitioners does not deserve to be granted.
Even at the cost and risk of repetition, it is relevant to recall some details mentioned by electricity company in its reply affidavit. It reads thus:-
"6. ....... It is pertinent to note that the panchayat record reflects the place shown along with the application as that of Bhangiwas meaning thereby the place is not the same place where connection is requested for.
Page 17 C/SCA/2991/2013 ORDER
7. ..... Moreover, perusing the contents of the said undertaking it is apparent that the petitioner No.2 was very much within the knowledge that there is likely to be some dispute in the future because the site on which connection is requested is not the same site where actual connection is given."
It is also relevant to recall that the District Development Officer has averred that:-
"1.2 Kanbha Gram Panchayat has made provision for supply of water to the villagers and for that purpose it has constructed tube-well. It is stated that water from Panchayat tube well is carried to Govt. tube well and from the same it is provided house to house to all the families residing in the village through water supply pipe lines. It is submitted that 2 electric motors having capacity of 20 and 30 Horse Power are put up on two tube wells and it is taken to Sump and thereafter to overhead tank.
2. ...On inquiry it is found that the Gram Panchayat is providing water from its tube well to the petitioner without collecting any charge. It is submitted that petitioner has put up its R.O. Plants on the land admeasuring 42' x 28' and also put up a compound wall and wire fencing. The petitioner company has also constructed a cabin as well as Room and at present it is non operational.
3. .... Hence it is clear that petitioner was drawing water from Water Supply Scheme of Gram Panchayat without paying any rent or charge to the Page 18 C/SCA/2991/2013 ORDER Gram Panchayat and after purifying the same it was being sold in 10 - 20 litter bottles. It is stated that the plant is established on Gamtal land as per records available in Gram Panchayat and reported by Talati-cum-Mantri and the Gram Panchayat is not collecting any charge or rent for the same."
10.1 In the facts and circumstances of the case, it cannot be said that the respondent electricity company has acted illegally or arbitrarily.
The respondent electricity company acted on the instructions of the competent authority who passed on the instructions to the electricity company in view of the facts which are mentioned hereinabove.
10.2 In these circumstances, the Court is not inclined to exercise discretionary jurisdiction and pass any order as prayed for by the petitioners.
The petition does not deserve to be
entertained and is, accordingly, disposed of.
Notice is discharged.
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C/SCA/2991/2013 ORDER
11. At this stage, learned advocate for the petitioners submitted that it may be clarified that it would be open to the petitioners to comply all formalities and after seeking No Objection Certificate from the higher authorities, again make request for electricity connection.
11.1 In view of the said statement by learned advocate for the petitioners, it is clarified that if the petitioners make appropriate request after complying all requirements and seeking No Objection Certificate from the higher authorities, then, the respondent electricity company may consider the application in accordance with its Rules, Policy and Regulations.
Present petition accordingly stands disposed of.
(K.M.THAKER, J.) kdc Page 20