Gujarat High Court
K. P. Residency Cooperative Housing ... vs Torrent Power Limited & on 26 September, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/16219/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16219 of 2017
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K. P. RESIDENCY COOPERATIVE HOUSING SERVICE SOCIETY
LIMITED & 5....Petitioner(s)
Versus
TORRENT POWER LIMITED & 1....Respondent(s)
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Appearance:
MR DIGANT M POPAT for the Petitioner(s) No. 1 6
MR ANUJ K TRIVEDI for the Respondent(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 26/09/2017
ORAL ORDER
1. The present petition is filed by the petitioners under Articles 14 and 226 of the Constitution of India as well as under the provision of the Electricity Act for the prayers as prayed for in the petition inter alia that appropriate writ, order or direction may be issued directing the respondent Company not to enter into the premises of the petitioner no.1society without authority or prior permission or approval of the society and also directing the Police authority to take strict action against the employees of the respondent Company for illegally entering into the private premises of the petitioners and damaging the Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Oct 01 14:21:45 IST 2017 C/SCA/16219/2017 ORDER properties and also for compensation as prayed for.
2. Heard learned advocate, Shri Digant Popat for the petitioners and learned advocate, Shri Anuj Trivedi for the respondents.
3. The issue involved is with regard to laying of the line for the catering of the needs of the people in public interest. It appears that the original owner has executed lease deed with the respondent Company, copy of which is produced at AnnexureR6 between the Lessor i.e. the developer and the Lessee i.e. the respondent, Torrent Power Ltd. Specific clause, which have been referred to by both the sides clearly prima facie suggests that it was agreed and accepted by the Lessor in the lease deed, which reads as under : "The Lessor shall allow the Lessee a right of access to the leased premises and also provide facility for laying their cables free of rent or any other payment whatever on, over, under, across, through and/or along a portion of land shown in yellow verged lines on the plan attached hereto, and shall keep the said portion of land permanently open to be used as roadway."
4. Clause 15 of the lease agreement reads as under: "15. This Lease Deed is binding upon the Lessor and its successors and assigns and its future office bearers / members will not be entitled to dispute or question the Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Oct 01 14:21:45 IST 2017 C/SCA/16219/2017 ORDER authority of the present office bearers, who have executed this lease deed, duly authorized."
5. It is in this background, read with Supply Code, which has been referred to by learned advocate, Shri Trivedi, the controversy is required to be examined to appreciate the submission made by learned advocate, Shri Popat for the petitioner and learned advocate, Shri Trivedi for the respondents.
6. Learned advocate, Shri Popat for the petitioner has submitted with vehemence that the officer of the respondents have entered into the society without any permission or authority and they had to call Police. In fact, learned advocate, Shri Popat has tried to submit that there is no right or authority for the respondent to enter into the society without prior permission. He has also said that even if the lease agreement is considered, it is only with regard to 29.79 sq.mts. regarding the installation of the substation and cannot make use of the land for any further construction. He, therefore tried to submit that any such construction or laying of the line would be unauthorized and illegal. Learned advocate, Shri Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Oct 01 14:21:45 IST 2017 C/SCA/16219/2017 ORDER Popat has also submitted that if there is any right claimed on the basis of the lease deed, it would be a matter in the realm of contract and the person can take appropriate action for enforcement as per the contractual obligation and, therefore, cannot enter into the premises without permission and has therefore prayed for the reliefs with much emphasis that it would cause inconvenience and the play area of children has been affected. Therefore, the present petition has been filed, which may be allowed. He has also referred to the judgment of the Hon'ble Division Bench (Coram :
Jayant Patel & Z.K. Saiyed, JJ.) in Special Civil Application No.18334/2011 and allied group of matters dated 29.08.2013 and pointedly referred to the observations made in Paragraph No.39 read with Section 65 and submitted that procedure or the guidelines have been laid down. He, therefore, submitted that the present petition may be allowed.
7. Learned advocate, Shri Anuj Trivedi for the respondent, however, has referred to the affidavit in reply and submitted that first contention about the lease deed itself would then raise the issue Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Oct 01 14:21:45 IST 2017 C/SCA/16219/2017 ORDER regarding the maintainability of the petition as if it is within the realm of the contract then the petitioner could file suit and claim compensation and such petition under Article 226 of the Constitution of India may not be maintainable at all. He has pointedly referred to the affidavit in reply and also lease deed, which as stated above provided for the right to access the land for the purpose of electric line in veiw of the Electricity Supply Code. He pointedly referred to Clause 5.13 and 5.14 of the Supply Code as well as Section 42 of the Electricity Act, 2003 and submitted that as per Section 42 of the Electricity Act, it cast an obligation upon the Licensee for distribution of the electricity in public interest. He, therefore, stated that there is no total lack of authority inasmuch as the lease deed specifically permits for the access to the respondent. He submitted that in fact, the members of the society have passed the Resolution and it was understood and accepted that the officers of the respondent can enter for the purpose of substation and, therefore, such petition would not be maintainable. In fact, he Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Oct 01 14:21:45 IST 2017 C/SCA/16219/2017 ORDER has also referred to other provision which provides that whether there is any obstruction or objection, the officer of the respondent can ask for the police protection and, therefore as stated in the communication at AnnexureR9, the officer of the respondent no.1 had to request the police. He, therefore, submitted that the respondent may carry out work for the purpose of laying necessary infrastructure like substation for further distribution of electricity in the area to other society in public interest and there cannot be any reservation or objection. He submitted that they would set right any damages and would see that it is done at the earliest.
8. In view of these rival submissions, it is required to be considered whether the present petition deserves consideration.
9. The present petition is filed by the petitioner through the members but there is no resolution as required to be needed in background of the facts and the consent given by some of the members, which is placed on record.
10. Therefore apart from the grievance made, the aspect of maintainability also requires to be Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Oct 01 14:21:45 IST 2017 C/SCA/16219/2017 ORDER considered as there is no resolution authorizing the society to file petition. Not only that, it appears that there is misconception with regard to the nature of function of the electricity company in public interest. The submission made with much emphasis about the arbitrariness or illegally entering into the society without permission, is misconceived as it is pointed out and as it is evident from the lease deed between the predecessor in title i.e. the original developer and the respondentCompany. It is very clear that the respondentCompany has been given access of right for the purpose of infrastructure or the substation.
11. Another submission which was conceded is that it should be confined to only substation of 29.79 sq.mtrs. area, is also misconceived inasmuch as the lease agreement also clearly referred to the right in favour of the respondent to make any alteration and additional in terms of the Clause 8, which provides, "8. The Lessee shall have rights to any alternations and additions in the premises as and when may be deemed necessary by the Lessee without prior approval of the Lessor or beneficiaries (Emphasis Supplied)."
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12. Thus the petitionersociety, which raises such contention, is required to be examined in light of this clause in the lease deed and the society is developed by the developer i.e. Lessor, as a result of which, rights are reserved by the respondent by specific clause in the lease deed. Therefore it cannot be said that there is any arbitrariness or illegally. Apart from that the provision of the Electricity Act, 2003 read with Supply Code would make the position clear that the respondent as a Licensee is required to carry out work under the Works of Licenses Rules, 2006. It cast an obligation to take care while preparing some alignment or laying line but it gives power and when the learned advocate has referred to the order of the Hon'ble Division Bench, it has to be considered in background of the statutory provision like Section 164, which provides for exercise of power of Telegraphic Authority in certain cases. It is required to be mentioned that it cast an obligation on the Licensee to cater to the needs for supply of electricity to the consumer, for which, necessary work has been made Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Oct 01 14:21:45 IST 2017 C/SCA/16219/2017 ORDER in the form of statutory Rules and the Licensee are under an obligation to supply electricity to the consumer. Therefore, the Supply Code, which has been made in exercise of statutory powers also referred to the system for supply and classification of the consumers. Clause 5.3.6 referred to the equipment and maintenance. Similarly Clauses 5.8.1 and 5.8.3 refers to the access to the consumer's premises.
13. Similarly when the powers have been reserved for necessary construction of poll or addition as pointed out from the map produced, it would be in the public interest. Therefore, the submission made by learned advocate, Shri Popat raising objection about the authority or jurisdiction are misconceived and cannot be accepted. However at the same time, interest of justice would be served if the respondent while having accessed to the land for their purpose is obliged to restore any damage or inconvenience as far as possible at the earliest. Therefore, the respondent be directed to restore any area which has been dug up within a period of ten days and it will restore the same within a period of ten days.
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14. With the above, the present petition stands dismissed. Notice discharged. Interim relief, stands vacated.
Sd/ (RAJESH H.SHUKLA, J.) FURTHER ORDER After the order was dictated, learned advocate, Shri Popat for the petitioners has requested for stay of the operation of the order, which is granted. The operation of the order shall remain stayed upto 02.10.2017.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Oct 01 14:21:45 IST 2017