Bombay High Court

Rupesh Dhirwani vs The Electricity ... on 25 August, 2021

Bench: Makarand Subhash Karnik

                                                                                    16. wp 3540.21.doc

                      Urmila Ingale


         Digitally
                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
URMILA
         signed by
         URMILA
         PRAMOD
                                               CIVIL APPELLATE JURISDICTION
PRAMOD   INGALE
INGALE   Date:
         2021.08.27
         20:28:29
         +0530

                                             WRIT PETITION NO. 3540 OF 2021
                                                          WITH
                                          INTERIM APPLICATION NO. 1657 OF 2021


                              Rupesh Dhirwani                            .... Petitioner
                                    Vs.
                              The Electricity Ombudsman, Mumbai and ors. ..... Respondents



                              Mr.Mayur Faria, for the Petitioner.
                              Mr.S.M. Gorwadkar, Senior Advocate a/w Mr.Yogesh Morbale,
                              Ms.Vaishnavi Gholave i/b Mr.Vinod P. Sangvikar, for Respondent
                              No.2 and for Applicant in IA/1657/2021.
                              Mr.Sandeep S. Jinsiwale, for Respondent No.3.




                                                     CORAM :     M. S.KARNIK, J.

DATE : 25th AUGUST, 2021

P.C. :

. Heard learned Counsel for the Petitioner. The

Petitioner by this Petition fled under Article 227 of the

Constitution of India challenges an order passed by the Electricity

Ombudsman, Mumbai appointed under the Maharashtra

Electricity Regulatory Commission under Section 42(6) of the

Electricity Act, 2003. It is the contention of the Petitioner that

originally a Company by name Asian Electronics was functioning

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in the plot no. 68 in MIDC area, Nashik. The power to the factory

was supplied through the switchgear provided by Maharashtra

State Electricity Distribution Company Limited (for short

'MSEDCL') which is situated in the said plot. It is the Petitioner's

contention that the Petitioner entered into the conducting

agreement sometime in the year 2013 with the Asian Electronics.

The electricity was being supplied through the switchgear which

is in the said plot no. 68. There is dispute about the sub-division

of the said plot according to the Petitioner. It is the contention of

the Petitioner that their factory is situated in the sub-divided plot

no. 68/4, but he has an agreement with Asian Electronics about

the electricity being supplied through said switchgear situated in

plot no. 68. It is the contention of the Petitioner that by virtue of

the agreement entered into with Asian Electronics, it is the

Petitioner who is entitled to utilize the electricity from the said

connection.

2. There is no dispute that Asian Electronics went in

liquidation. In proceedings fled before this Court in Company

Petition, plot no. 68 over which Asian Electronics was situated

was purchased by Respondent No.2 approximately for a sum of

Rs.11 crores. They therefore applied to Maharashtra State

Electricity Distribution Co. Ltd. (for short 'MSEDCL') for

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transferring electricity connection of Asian Electronics situated on

plot No. 68 in their name which was granted.

3. The Petitioner then approached the Consumer

Grievance Redressal Forum, MSEDCL when injunction was

granted in favour of the Petitioner on 09/08/2019. Then a

representation came to be made by the Respondent No.2 vide

Representation No. 162 of 2019 before the Ombudsman. The

said representation has been allowed and electricity connection

in the name of Respondent No.2 came to be confrmed. This

order is challenged by way of this Petition.

4. There is no dispute that so far as plot no. 68 is

concerned, the same stands in the name of Respondent No.2.

Further, so far as sub-divided plot no. 68/4 is concerned, in that

plot, the Petitioner is conducting its business pursuant to the

agreement entered into between them and Asian Electronics.

Now a dispute is being raised by the Petitioner that the plots are

never sub-divided. Factually, it is seen that there are factories

situated in the sub-divided portions in 68/1, 68/2, 68/4. Plot no.

68/3 is shown to be vacant. The Petitioner is carrying on its

activities in plot No. 68/4.

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5. I have gone through the fndings recorded by the

Ombudsman. A fnding of fact has been recorded that the

switchgear electricity connection is situated in plot no. 68 which

has been purchased by the Respondent No.2. By a reasoned

order and after considering the matter in detail, the Ombudsman

has made the following observations in paragraph 17 which

reads thus :

"17. My observations from the above discussion is as follows:

(i) The Appellant is the lawful owner/ occupier of Plot No. 68.

(ii) The agreement is executed between Arun Babulal Shah on behalf of Asian Electronics Ltd. as the owner, and Mohanlal K. Pahuja and Rupesh Dhirwani together as Conductor ( Respondent No.2) on 14.05.2013. Company Petition No. 492 of 2011 is admitted on 27.04.2012 and its judgment is dated 13.11.2014. Therefore, the said agreement is during the litigation period of the Company Petition No. 492 of 2011.

(iii) The second Lease Deed dated 09.01.1992 is between MIDC and Asian Electronics Ltd. which mentions subdivision of Plot No. 68 admeasuring 20780 sq. mtr. into fve plots at the request of Lessee (Asian Electronics Ltd.). This being so, how the agreement dated 14.05.2013 between Asian Electronics Ltd. and the Respondent No.2 can be for a Plot admeasuring 20780 sq. mtr. when it has already been subdivided into fve plots. Moreover, this agreement is neither registered nor notarized. I am of the opinion, that, such agreements/transfer requires permission from MIDC. However, no such permission from MIDC Authority seems to have been taken before execution of such agreement. Neither any separate permission

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letter is submitted before this Authority by the Respondent No.2. The original owner, Asian Electronics Ltd. appears to have created third party interest in the said property without valid permission from MIDC which is not allowed. Therefore, this agreement dated 14.05.2013 prima facie appears to be bad in law.

(iv) The Respondent No.2 submitted that power cable does not crossroad as no road as such exists. However, from the above table, it is clear that area of 1746 sq. mtr. has been surrendered for the access road by Asian Electronics Ltd. from 11970 sq. mtr. Therefore, the submission of Respondent No.2 is incorrect."

(emphasis supplied)

6. Having regard to the materials on record, it further

appears that there is a road passing between plot no. 68 and plot

No. 68/4. It is not as if an application was made by the

Petitioner for electricity connection and that the said switchgear

standing in the plot no. 68 was transferred in their favour. It is

the contention that pursuant to the conducting agreement that

the Petitioner had with the Asian Electronics, the Petitioner was

authorised to use the electricity which they have been utilising

all these years. The Petitioner has not placed any material to

show that they ever applied for electricity connection or that the

switchgear was transferred in their name. It is also seen from the

location map produced that the switchgear is in plot No. 68 and

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there is an internal road separating plot No. 68 (purchased by

Respondent No.2) & 68(4) (which belongs to the Petitioner). Now

it is tried to contend that the sub-division itself is illegal. This is a

claim made by the Petitioner on the basis of a conducting

agreement with Asian Electronics. The second lease deed

between MIDC & Asian Electronics mentions sub-division of plot

No. 68 into 5 plots. It is therefore not open for the Petitioner to

take this stand contrary to the stand of Asian Electronics from

under whom the Petitioner claims by virtue of conducting

agreement. It is obvious that the said stand is taken to

demonstrate that there is no sub-division, resultantly the

switchgear situated in undivided plot No. 68 can be claimed by

the Petitioner on the strength of the conducting agreement.