Telangana High Court
Mohammed Sohail Vakil vs The State Of Telangana on 23 April, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.8243 of 2024
ORDER:
Heard Mr.Mustafa Basith, learned counsel appearing on behalf of petitioner and learned Government Pleader for Energy, appearing on behalf of respondent No.1, Mr.P.Prasad, learned Standing Counsel for TSERC, appearing on behalf of respondent No.2, Sri R.Vinod Reddy, learned Standing Counsel for TSSPDCL, appearing on behalf of respondent Nos.3 to 5.
2. The petitioner approached the Court seeking the prayer as follows:
"......to issue a writ or order or direction more preferably Writ of Mandamus declaring the action of the respondents in disconnecting the Electricity vide Meter bearing Service No.314100397 and Unique SC No.113404214 as illegal, contrary to the Rules and Regulations of the Electricity Act, 2003 and also violative of Articles 14 and 300A of the Constitution of India and consequently, direct the Official respondents to restore the Electricity over the property bearing Sy.No.2,3,4,5, Shivrampally, Rajendranagar over Meter bearing Service No.314100397 and Unique SC No.113404214 and pass such other order or orders as this Honourable Court may deem fit and proper in the circumstances of the case."2
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3. The case of the petitioner, in brief, as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present writ petition is as follows:
a) The petitioner is the tenant of the premises bearing Survey Nos., 2, 3, 4, 5, admeasuring 3000 Sq. Feet, Situated at Pillar No.265, Aramghar, Shivrampally Village, Rajendra Nagar Mandal, Ranga Reddy District, T.S. and that the petitioner obtained the premises for running the Hotel Business on rent from the Respondent No.6 under unregistered Rental Agreement dated 11.04.2023 on a monthly rent of Rs.1,70,000/- (Rupees One Lakh and Seventy Thousand Only) and the petitioner had deposited an amount of Rs.17,00,000/ (Rupees Seventeen Lakh Only) as security deposit amount which is refundable at the time of vacating the premises.
b) It is respectfully submitted that since the Respondent No. 6 and his associates were interfering in the possession of the property and demanding the petitioner either to enhance the rent abnormally or to vacate the property as such, the petitioner was constrained to file the Suit for Perpetual 3 SN,J WP_8243_2024 Injunction vide OS.No. 478 of 2023 on the file of Hon'ble II Junior Civil Judge, at Rajendranagar and the petitioner has also filed I.A.No. nil of 2023 for grant of ad-interim injunction and the Hon'ble court has been pleased to grant Ad-Interim Injunction restraining the Respondents in the suit from interfering with the possession of the property.
c) It is further the case of the petitioner that the petitioner is having Electricity connection vide Service No. 314100397 and Unique SC No. 113404214 and the same stands in the name of petitioner's landlord i.e. Respondent No 6. The said electricity meter was disconnected from the tenanted premises on the application submitted by Respondent No 6 being the owner. Therefore, the said act of the respondent No.6 as well as the respondent Nos. 3 to 5 is illegal and unauthorized and against the settled principles of law. Aggrieved by the action of respondent Nos.3 to 5 and respondent No.6, the present writ petition is filed. PERUSED THE RECORD 4 SN,J WP_8243_2024
4. Notice before Admission has been ordered by this Court on 01.04.2024 and in compliance to the directions of this Court dated 01.04.2024 the learned counsel for the petitioner got issued personal notice to the respondent No.6 through registered post and acknowledgment due (RPAD) and filed proof of service of notice to the respondent No.6 into registry and to that effect filed Memo, dated 18.04.2024.
5. Section 43 of the Electricity Act, 2003 reads as under:
"Section 43. (Duty to supply on request) (1)(Save as otherwise provided in this Act, every distribution) licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:
6. The Apex in the Judgment reported in 2023 LiveLaw (SC) 453 in between K.C.Ninan Vs. Kerala State of Electricity Board and others passed in Civil Appeal Nos.2109 and 2110 of 2004, dated 19.05.2023, observed as under:
"Electricity Act, 2003; Section 43 - The duty to supply electricity under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act 5 SN,J WP_8243_2024 contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities."
7. The Apex Court in its Judgment reported in (2011) 12 Supreme Court Cases 314 in between Chandu Khamaru Vs. Nayan Malik and Others passed in Civil Appeal No.7575 of 2011 dated 02.09.2011 observed as under:
Sub-section (1) of Section 42 and sub-section (1) of Section 43 of the Electricity Act, 2003 are quoted herein below:
"42. Duties of distribution licensees and open access-(1) It shall be the duty of a distribution licensee to develop and maintain an efficient co-ordinate and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act."
"43. Duty to supply on request-(1) Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply."
7. It will be clear from sub-section (1) of Section 42 that every distribution licensee has a duty to develop and maintain an efficient co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act. Sub-section (1) of Section 43 provides that every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply. These provisions in the Electricity Act, 2003 make it amply clear that a distribution licensee has a statutory duty to supply electricity to an owner or occupier of any premises located in the area of 6 SN,J WP_8243_2024 supply of electricity of the distribution licensee, if such owner or occupier of the premises applies for it, and correspondingly every owner or occupier of any premises has a statutory right to apply for and obtain such electric supply from the distribution licensee.
12. The case of the appellant, on the other hand, is that this passage is not a private passage of respondent Nos.1 to 3 but is a common passage and therefore an electric line can be drawn through this common passage. This dispute will have to be resolved in Civil Suit No.83 of 2004 pending in the Court of Civil Judge (Junior Division), Howrah, or in any other suit, but pending resolution of this dispute between the parties, the appellant cannot be denied supply of electricity to his house.
11. We, therefore, set aside the order of the learned Single Judge as well as the impugned order of the Division Bench and dispose of the Writ Petition of respondent nos.1 to 3 with the direction that the distribution licensee will find out whether there is any other way in which electric line can be drawn for supply of electricity to the house of the appellant, other than the disputed passage in Dag Nos.406, 407 and 409. If there is no other way to supply electricity to the house of the appellant, the distribution licensee will follow the provisions of sub-section (2) of Section 67 of the Electricity Act, 2003 for carrying out the work for supply of electricity to the house of the appellant.
8. The Apex Court in the Judgment reported in 2022 LiveLaw 570 in between Dilip (dead) through LRs Vs. Satish and others passed in CRLA No.810 of 2022 (arising out of Special Leave petition (CRL)No.8917 of 2019, dated 13.05.2022 observed as under:
"It is not disputed that applicant No.1 has obtained the connection of electricity. The submissions made show that applicant No. 1 is in possession of the shop and he is running a saloon shop. It is clear that he needs electricity for doing this business, but the first 7 SN,J WP_8243_2024 informant was not giving no objection certificate. He took every step to see that applicant No. 1 does not get supply of electricity for his business. It is not the case of the Applicant No. 1 that as per the agreement between him and landlord, the landlord is bound to supply the electricity. Further, the Electricity Board seeks no objection of landlord only to verify that the possession of the tenant is authorised. There is no other purpose behind obtaining such no objection from landlord. The landlord cannot prevent the tenant from availing such facility at his own cost.
It is now well settled proposition of law that electricity is a basic amenity of which a person cannot be deprived. Electricity cannot be declined to a tenant on the ground of failure/refusal of the landlord to issue no objection certificate. All that the electricity supply authority is required to examine is whether the applicant for electricity connection is in occupation of the premises in question. Be that as it may, the High Court clearly fell in error in quashing the FIR. It cannot be said that fabrication and/or creation of records and/or forging a signature does not constitute an offence under the Indian Penal Code. The High Court completely overlooked the definition of cheating in Section 415 of the IPC. It is however made clear that electricity supply granted, shall not be discontinued, subject to compliance by the Respondents of the terms and conditions of supply of electricity by the electricity department including payment of charges for the same."8
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9. This Court opines that the petitioner cannot be denied supply of electricity to petitioner's house and the respondent Nos.3 to 5 herein cannot disconnect electricity supply to the petitioner who is the tenant of the subject premises, owned by the 6th respondent, on receipt of an application submitted by the 6th respondent - owner.
10. Taking into consideration the facts and circumstances of the case,
(a) Duly taking in to consideration the observations of the Apex Court in the Judgment reported in 2022 LiveLaw 570 in between Dilip(dead) through LRs Vs. Satish and others passed in CRLA No.810 of 2022 (arising out of Special Leave petition (CRL)No.8917 of 2019, dated 13.05.2022.
(b) Duly taking into consideration the observations of the Apex Court in the judgment reported in (2011) 12 Supreme Court Cases 314 in between Chandu Khamaru Vs. Nayan Malik and Others passed in Civil Appeal No.7575 of 2011 dated 02.09.2011, 9 SN,J WP_8243_2024
(c) Duly taking into consideration the observations of the Apex Court in judgment reported in 2023 Livelaw (SC) 453 in between K.C.Ninan Vs. Kerala State of Electricity Board and others passed in Civil Appeal Nos.2109 and 2110 of 2004, dated 19.05.2023.
(d) Duly taking into consideration of Section 43(1) of the Electricity Act, 2003.
The present writ petition is allowed as prayed for and the respondent Nos.3 to 5 are directed to restore the Electricity power supply over the property bearing Sy.No.2,3,4,5, Shivrampally, Rajendranagar over Meter bearing Service No.314100397 and Unique SC No.113404214, within a period of one (01) week from the date of receipt of the copy of this order by giving due notice of the same to the 6th respondent herein. It is however, made clear that electricity service connection granted, shall not be discontinued by the respondent Nos.3 to 5 subject to the petitioner complying with the required terms and conditions as per the Rules in force, including payment of charges by 10 SN,J WP_8243_2024 the petitioner. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________________ MRS JUSTICE SUREPALLI NANDA Date: 23rd April, 2024 ksl.