Gujarat High Court
Executive vs Natubha on 9 December, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/7203/2011 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7203 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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EXECUTIVE
ENGINEER - Petitioner(s)
Versus
NATUBHA
JALAMSANG RATHOD & 1 - Respondent(s)
=========================================================
Appearance
:
MS
LILU K BHAYA for
Petitioner
MR HARDIK B SHAH for Respondent(s) : 1
MR BHARGAV
KARIA & ASSO for Respondent(s) :
2
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 09/12/2011
ORAL
JUDGMENT
Rule.
Mr.Hardik B.Shah and Mr.Bhargav D.Karia, learned advocates, waive service of notice of Rule for respondents Nos.1 and 2, respectively.
This petition, under Article 226 of the Constitution of India, has been filed with the following prayers:
"(A) To issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the judgment and order dated 20.7.2010 passed by Hon'ble the Electricity Ombudsman, Gujarat State, Ahmedabad, the respondent no.2 in Case No.20 of 2010 and reject the Case No.20 of 2010 and uphold the decision of the CGRF, PGVCL, Bhavangar in Case No.89 of 2009 for the reasons stated in the Memo of Petition and in the interest of justice;
(B) Pending admission, hearing and final disposal of this petition, to stay the execution, implementation and operation of the impugned order dated 20.7.2010 of the Hon'ble the Electricity Ombudsman, Gujarat State, Ahmedabad, the respondent No.2 in Case No.20 of 2010 for the reasons stated in the Memo of Petition and in the interest of justice;
(C) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.
(D) To award the cost of this petition."
The petitioner is the Paschim Gujarat Vij Company Limited ("the Electricity Company" for short), who has approached this Court, being aggrieved by the judgment and order dated 20.07.2010 passed by the Electricity Ombudsman, Gujarat State, Ahmedabad, in Case No.20/2010, whereby, the order of the District Consumer Disputes Redressal Forum, Bhavnagar ("the Forum" for short), dated 17.02.2010, has been set aside.
The brief facts of the case are that respondent No.1 (consumer), who, admittedly is a resident of village Rojid, Taluka: Dhandhuka, District: Ahmedabad, made an application dated 13.02.1998 to the petitioner - Electricity Company for grant of an electricity connection for agricultural purposes. The said application of respondent No.1 was in the priority list of agriculturists waiting for their turn for getting agricultural electricity connections. Thereafter, respondent No.1 made another application on 14.07.2008 to the Electricity Company, seeking transfer of his application from the normal scheme to Micro Irrigation System and shifting the same to village Ranpari, on land bearing Survey No.32 (Paiki). Respondent No.1 also paid registration charges on 14.07.2008. According to the petitioner - Electricity Company, as per applicable Rules, the agricultural connection can only be shifted to another place in the same village but not to another village. Respondent No.1 was accordingly informed vide letter dated 21.11.2009 in this regard. It was stated in the said communication that if respondent No.2 was desirous of getting an agricultural connection at village Rojid in Survey No.55, he may intimate the Electricity Company after getting the Drip System fitted, but it would not be possible to shift the connection to village Ranpari. Respondent No.1 made a representation to the petitioner - Electricity Company, stating that in 22 similar cases, consumers were granted agricultural connections in other villages, therefore, he should also be meted out the same treatment. Being aggrieved by the action of the petitioner - Electricity Company in not granting the prayer made in the application, respondent No.1 approached the Forum, vide Case No.89/2009. The Forum, vide judgment and order dated 17/18.02.2010, upheld the action of the petitioner - Electricity Company in refusing to grant shifting of the agricultural connection from one village to another. Aggrieved thereby, respondent No.1 filed an appeal against the order of the Forum before the Electricity Ombudsman who, by the impugned order dated 20.07.2010, has directed the petitioner - Electricity Company to shift the electricity connection of respondent No.1 from village Rojid to village Ranpari. Being aggrieved by the abovementioned order, the petitioner - Electricity Company has approached this Court by preferring the present petition.
Ms.Lilu K.Bhaya, learned advocate for the petitioner, has submitted that the impugned order of the Electricity Ombudsman is erroneous and against the contents of Circular dated 18.06.1996, which is applicable to the petitioner - Electricity Company. It is submitted that the said Circular permits shifting/ transfer of an electricity connection only to another place in the same village, but not to another village, which aspect has not been taken into consideration by the Electricity Ombudsman while passing the impugned order, though a specific contention in this regard was raised. It is further submitted that for availing of an agricultural connection, a priority list is prepared and agriculturists are waiting in the queue for their turn. If transfer/ shifting of an electricity connection from one village to another is permitted dehors the Circular, it would amount to depriving other agriculturists of their turn to get the connection. The learned advocate for the petitioner has further contended that in the 22 cases cited by respondent No.1, agricultural connections were given as a one-time measure for which approval was given by the Board of Directors of the petitioner - Electricity Company, in the peculiar facts and circumstances, whereas in the present case, no such approval has been given. That the Officer who has accepted the application of respondent No.1 for shifting of the Electricity Connection and has processed the same is facing departmental proceedings for acting dehors the Rules/ Circular of the Company. Merely because the procedure has been completed dehors the Rules, it does not mean that the respondent No.1 should be granted an electricity connection by shifting the said connection to another village when the Circular does not provide for the same.
Mr.B.D.Karia, learned advocate for respondent No.2 (Electricity Ombudsman), has submitted that the Circular dated 18.06.1996 pertains to processing the demand/ applications for grant of agricultural connections under changed circumstances such as non-availability of water at the original demand place, grant of the said connection to the legal heir of the deceased applicant or to the incoming land owner due to change in ownership of the land, which three contingencies are not applicable to the case of respondent No.1. It is further submitted by the learned advocate for respondent No.2 that the said Circular nowhere states that shifting of an agricultural connection to another village is prohibited or barred, therefore, appropriate directions for shifting the agricultural connection of respondent No.1 from village Rojid to village Ranpari have rightly been issued by the impugned order.
Mr.Hardik B.Shah, learned advocate for respondent No.1, has submitted that the impugned order of the Ombudsman is just and proper. The entire procedure for shifting the electricity connection has been completed and an amount of Rs.88,876/- has been paid by respondent No.1 to the Electricity Company. Further, the Electricity Company has also installed pillars on the land of the petitioner at village Ranpari. The Ombudsman has rightly allowed the appeal of respondent No.1 on the ground that there has been no suppression of facts by respondent No.1 and as the Electricity Company has fully processed the matter, the electricity connection be directed to be shifted.
Having heard the learned advocates for the respective parties and upon perusal of the impugned judgment of the Electrical Ombudsman, it is evident from Paragraph-2.4 of the impugned order that the petitioner
- Electricity Company has specifically raised the contention regarding applicability of Circular dated 18.06.1996 to the case of respondent No.1. The stand of the petitioner - Electricity Company before the Consumer Forum as well as the Electricity Ombudsman has been that shifting / transfer of the agricultural electricity connection of the petitioner from village Rojid to village Ranpari as a Micro Drip System agricultural connection is not permissible, as the Circular dated 18.06.1996, only permits shifting of the connection within the same village and not to another village.
It is apparent from the impugned order that the aspect regarding applicability of Circular dated 18.06.1996 to the case of respondent No.1 has not been touched upon by the Electricity Ombudsman. As the applicability, or otherwise, of the said Circular appears to be the core issue in the dispute between the petitioner and respondent No.1, the fact that it has been ignored and not dealt with, would render the impugned judgment of the Ombudsman vulnerable, inasmuch as this Court would not consider it appropriate to go into this aspect at this stage, when the same ought to have been dealt with by the Electricity Ombudsman. Further, the contentions raised by the learned advocate for respondent No.2 before this Court are not reflected in the impugned judgment rendered by respondent No.2, therefore, they cannot be considered by this Court.
For the aforesaid reasons, the petition is partly-allowed. The impugned order dated 20.07.2010 passed by the Electricity Ombudsman, Gujarat State, Ahmedabad, in Case No.20/2010, is quashed and set aside and the matter is remitted back to the Electricity Ombudsman (respondent No.2) for fresh decision, in accordance with law, on the point of applicability of Circular dated 18.06.1996. The Electricity Ombudsman shall hear the parties and decide the matter afresh, as directed hereinabove, within a period of two months from the date of receipt of a copy of this judgment, without being influenced by any observation made in this order.
Rule is made absolute to the above extent. There shall be no orders as to costs.
Direct Service is permitted.
(Smt. Abhilasha Kumari, J.) (sunil) Top