Delhi District Court
Sehnaz vs . B.S.E.S. Y.P.L. & Anr. on 5 October, 2013
Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
IN THE COURT OF SH. VISHAL GOGNE,
ACJCCJARC(EAST), KARKARDOOMA COURTS, DELHI
Suit No.: 03/07
Case ID No.: 02402C0023552007
IN THE MATTER OF:
Smt. Sehnaz
W/o Mohd. Hanif
R/o 139, Old Anarkali,
Delhi51 ... Plaintiff
VERSUS
1. B.S.E.S. Y.P.L.
Shakti Kiran Building,
Karkardooma Delhi
2. Smt. Maya Devi
W/o Sh. Madho Singh
R/o B121, Gali no. 3,
Near Ambedkar Gate
Jagat Puri, Delhi51. ... Defendants
DATE OF INSTITUTION : 03.01.2007
DATE OF RESERVING THE ORDER : 19.09.2013
DATE OF DECISION : 05.10.2013
Suit No. 03/07 Page No. 1/13
Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
SUIT FOR MANDATORY INJUCTION
JUDGMENT
PLAINT
1. The plaintiff is the occupant of the ground floor of property bearing no. 139, Old Anarkali, Delhi51(hereafter referred to as the suit property), and claims to be its owner. The suit prays for a mandatory injunction directing defendant no. 1 i.e. BSES to install an electricity connection in the suit property.
2. Defendant no. 2 is stated to be the tenant of the plaintiff and residing at the upper floors of the suit property (and was impleaded as a party after an application under Order 1 Rule 10 CPC moved by the plaintiff was allowed by the Ld. Predecessor of this Court on 17.04.2007).
3. The plaintiff has averred in the plaint that the original electricity meter in the suit property was in the name of one Ramesh Lal i.e. the original owner. Ramesh Lal sold the property to Maya Devi(Defendant no. 2). Defendant no. 2 further sold the suit property to the plaintiff but forcibly occupied the upper floors therein. As defendant no. 2 was purportedly committing theft of electricity, the plaintiff made a complaint to defendant no. 1 leading to the removal of the electricity connection. The plaintiff Suit No. 03/07 Page No. 2/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
then applied for a fresh electricity connection but her application was rejected by defendant no. 1 on the ground that being the owner the plaintiff had to first clear the outstanding dues.
4. The cause of action for the suit is stated to have arisen when the plaintiff again applied for a fresh electricity connection and attempted to deposit the electricity dues but was declined by defendant no. 1.
WRITTEN STATEMENT OF DEFENDANT NO. 1
5. Defendant no. 1 submitted that the application of the plaintiff was rejected due to objections filed by defendant no. 2 alongwith certain documents interalia cancellation of GPA dated 31.07.2004, cancellation of Will dated 09.08.04 and order dated 20.09.04 passed by Sh. Sudesh Kumar, then Ld. Civil Judge, Delhi in Suit No. 188/04 filed by present plaintiff against present defendant no. 2 and other defendants.(Vide the said order, the Court directed the parties to maintain status quo in the suit property). Defendant no. 1 further submitted that the plaintiff had not filed a second application and not sought to deposit dues of electricity.
WRITTEN STATEMENT OF DEFENDANT NO. 2
6. Defendant no. 2 set up an entirely different scenario. It was averred that it was the plaintiff who was a tenant in the Suit No. 03/07 Page No. 3/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
ground floor of the suit property and had concealed the filing of a petition under the DRC Act bearing no. E258/06 by defendant no. 2 against her and also the filing of Suit No. 188/04 filed by the plaintiff against defendant no. 2 and other defendants. Further, that the plaintiff was a defaulter in payment of rent and had got executed documents like GPA, Will etc. in her favour from defendant no. 2 in a fraudulent manner with the help of a property dealer namely Jagdish Kumar and a deed writer namely Nandu Mal, Advocate. However, defendant no. 2 had subsequently cancelled the registered GPA and Will on 09.08.2004.
7. Defendant no. 2 also claimed that the plaintiff had signed a compromise deed at PS Krishna Nagar on 15.10.2003 agreeing to vacate the suit property on 15.11.2003 after receiving a sum of Rs. 70,000/ from defendant no. 2. The plaintiff failed to accept the above amount and also failed to vacate the suit property.
8. It was also denied that an electricity meter had existed in the name of Ramesh Lal or that the plaintiff had purchased the suit property from Maya Devi. The charge of theft of electricity was denied by defendant no. 2.
9. The following issues were framed for trial:
(i)Whether the plaintiff has no locus standi to file the present suit?OPD2 Suit No. 03/07 Page No. 4/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
(ii)Whether the plaintiff has no cause of action to file the present suit?OPD
(iii)Whether the plaintiff is entitle to a decree of mandatory injunction?OPP
(iv)Relief The finding on the issues are as follows:
ISSUE NO. (i) OPD2
10. The Ld. counsel for defendant no. 2 challenged the locus of the plaintiff to file the present suit on the submission that she was not the owner of the same and could not claim the right to installation of an electricity connection only in the capacity of a tenant. The counsel submitted that no document of ownership had been filed with the plaint and that defendant no. 2 had specifically deposed(as DW2) that the purported GPA and Will executed by her in favour of the plaintiff had been cancelled vide cancellation deeds Ex. DW1/A & Ex. DW1/B.
11. Per contra, the Ld. Counsel for the plaintiff agitated that her possession in the suit property was not disputed by defendant no. 2. Consequently, the plaintiff was entitled to basic amenities like water and electricity. Reliance was placed on the following decisions:
(i)Fashion Proprietor Aswani Kumar Maity v. West Bengal Electricity Distribution Company Limited and Others Suit No. 03/07 Page No. 5/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
AIR 2009 Calcutta 87
(ii)Amarendra Singh v. Calcutta Electric Supply Corporation Ltd. & Ors. AIR 2008 Calcutta 66.
12. The Ld. Counsel pointed to the deposition of PW2 i.e. the Ahlmad who brought the suit file in suit no. 522/09 titled Shehnaz Vs. Maya Devi and proved the documents Mark A to F to be the correct copies of documents Ex. PW5/1 & Ex. PW1/2 to Ex. PW1/5 in the said file. These documents were in the nature of GPA and other documents whereby defendant no. 2 transferred the suit property in favour of the plaintiff. It was thus argued that ownership of the plaintiff had been established and defendant no. 2 could not deny the authenticity of the transfer by executing a cancellation deed. The counsel also referred to the cross examination of defendant no. 2 where she admitted there she had neither issued any rent receipt nor filed a suit for possession against the plaintiff. She also admitted that she had not sought the cancellation of documents Ex. DW2/P1 to Ex. DW2/P6.
13. The Court has considered the above submissions.
14. The Court would observe at the outset that the Ld. Counsels for both parties were misplaced in their arguments in seeking to emphasize the aspect of ownership of the suit property in the context of the relief sought in the suit. The present suit does Suit No. 03/07 Page No. 6/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
not relate to declaration of title, recovery of possession or of rent. The question of title would thus not be material to determine the entitlement of the plaintiff to electricity in the suit property. The relief is contingent upon occupation and enjoyment of the suit property.
15. The plaintiff is admittedly in possession on the ground floor of the suit property. Defendant no. 2, who resides on the upper floors of the suit property, did not deny that the plaintiff has been in continued occupation/possession of the said portion. Infact, defendant no. 2 stated in the WS and also in her affidavit in evidence that the plaintiff was inducted as a tenant on 30.10.2002. Thus the locus of the plaintiff to seek a mandatory injunction for provision of an electricity meter/connection would arise from the use and occupation of the suit property and not the nature of her right, title or interest in the same. The plaintiff was duly entitled to institute the present suit.
Issue no. (i) is decided in favour of the plaintiff and against defendant no. 2.
ISSUE NO. (ii) OPD
16. The onus to prove this issue was on both defendants. While the counsel for defendant no. 2 argued against existence of any cause of action on the submission that the title of Suit No. 03/07 Page No. 7/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
the plaintiff had been denied, the counsel for defendant no. 1 submitted that the plaintiff had failed to furnish proof of filing of a second application for installation of an electricity connection after her first application was rejected by the said defendant.
17. In response, the Ld. counsel for the plaintiff argued that cause of action arose after the rejection of the first application itself.
18. The Court finds itself in agreement with the submission of the counsel for the plaintiff. Neither defendant was of the submission that there existed an electricity connection in favour of the plaintiff. The plaintiff is undoubtedly the occupant of the ground floor of the suit property. Defendant no. 1 admitted in its WS that the application bearing no. N122006081853 moved by the plaintiff was rejected due to objections filed by Maya Devi. Regardless of the reasons of the rejection, a cause of action became available to the plaintiff to institute civil action in a court of law. Having admitted the moving of one application and its rejection, the service provider viz BSES cannot insist on a fresh application.
19. As to the objections raised by defendant no. 2, the Court has already noted that the title of the parties is not of essence in the present suit. The suit is maintainable on the basis of Suit No. 03/07 Page No. 8/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
possession and cause of action as discussed above.
20. The Court would refer here to the decisions cited by the plaintiff.
In Fashion Proprietor Aswani Kumar Maity v. West Bengal Electricity Distribution Company Limited and Others AIR 2009 Calcutta 87, the Court held that:
"14. If the law of the land provides that a person in possession of any premises may not be dispossessed there from except in accordance with law, it is implicit that the possession of the person is protected till such time than an appropriate forum hold otherwise an 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."
21. In Amarendra Singh v. Calcutta Electric Supply Corporation Ltd. & Ors. AIR 2008 Calcutta 66, it was held that:
"The Supreme Court in the case of Chameli Singh v. State of U.P. reported in (1996) 2 SCC 549:
(AIR 1996 SC 1051) discussed the components of right to live and specifically observed that right to life includes the right to live with human dignity.Suit No. 03/07 Page No. 9/13
Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
In the aforesaid judgment, Hon'ble Supreme Court specifically observed that right to live guaranteed in any civilized society implies the right to shelter and while discussing the right to shelter, the Hon'ble Supreme Court also held that the same includes electricity which is undisputedly, an essential service to the shelter for a human being".
22. The above decisions provide an indefeasible legal foundation to the cause of action of the plaintiff. Being the occupant of the ground floor of the suit property, the plaintiff is entitled to move the Court upon rejection of his application for installation of an electricity connection.
Issue no. (ii) is decided in favour of the plaintiff and against the defendants.
ISSUE NO. (iii)OPP
23. The Ld. Counsel for the plaintiff submitted that since defendant no. 1 was unwilling to provide an electricity connection in the face of objections by defendant no. 2, an injunction from the Court was the only remedy available to him. It was submitted that defendant no. 1 had explicitly admitted the rejection of his application for providing electricity and refused to receive the dues.
24. The Ld. Counsel for defendant no. 1 agitated that the Suit No. 03/07 Page No. 10/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
BSES was justified in rejecting the application in view of the objections raised by defendant no. 2 who had not provided a NOC to defendant no. 1 for installation of an electricity meter in the name of the plaintiff.
25. The Ld. Counsel for defendant no. 2 submitted that the plaintiff was an unauthorized occupant. Further, that DW1 namely Jagdish Chander, a property dealer had proved the compromise deed Ex. DW1/A whereby the plaintiff had agreed to vacate the suit property on 15.11.2003. Moreover, PW1 had admitted her signature on the said document during cross examination as PW1 in the previous suit between the parties and identified the certified copy of the said crossexamination as Ex. PW1/D2.
26. Having considered the above submissions, the Court finds no force in the arguments advanced by the counsels for the defendants. The decisions in Fashion Proprietor Aswani Kumar (Supra) and Amarendra Singh(Supra) leave no doubt that the legality or otherwise of possession has no bearing on the entitlement to basic amenities like electricity. The plaintiff would be entitled to an electricity connection even if the purported owner viz defendant no. 2 does not issue a no objection certificate. Defendant no. 1 cannot insist upon such a certificate. The plaintiff Suit No. 03/07 Page No. 11/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
has a right to electricity till his possession subsists in the suit property. Any undertaking given by the plaintiff to vacate the suit property does not diminish this right. As noted earlier, the title of the parties is not material to this suit and is not adjudicated by this Court.
27. The Court would again refer to a citation filed by the plaintiff viz the decision in Abhimanyu Mazumdar v. Superintending Engineer & Anr. AIR 2011 Calcutta 64 Full Bench. The Court held that a person in settled possession of a property be it unauthorized occupiers, encroachers of any premises and squatters of any premises, is free to apply for supply of electricity without consent of the owner of same and is entitled to get electricity and enjoy same until he is evicted by due process of law.
Issue no. (iii) is decided is favour of the plaintiff and against both defendants.
RELIEF
28. In view of the findings upon issues no. (i) to (iii), a mandatory injunction is issued in favour of the plaintiff and against defendant no. 1 to accept a fresh application for an electricity connection from the plaintiff qua the ground floor of Suit No. 03/07 Page No. 12/13 Sehnaz Vs. B.S.E.S. Y.P.L. & Anr.
property bearing no. 139, Old Anarkali, Delhi51 and install the electricity connection subject to fulfillment of commercial conditions by the plaintiff and an appropriate security to be deposited by the plaintiff. The security amount shall be at par with security charged by defendant no. 1 from similarly placed applicants who are not the owners of a particular premises.
29. Let decree sheet be drawn up accordingly.
30. There shall be no order as to costs.
31. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 05.10.2013 This Judgment contains 13 pages and each paper is signed by me.
VISHAL GOGNE ACJCCJARC(EAST) KKD Courts/Delhi.
Suit No. 03/07 Page No. 13/13