Delhi High Court
Aviation Employees Coop. H/B ... vs Desu And Anr. on 10 August, 2006
Equivalent citations: 133 (2006) DLT 313
Author: S R Bhat
Bench: S R Bhat
JUDGMENT
S. Ravindra Bhat, J.
Page 2801
1. The writ petitioner, a Housing Co-operative Society, has approached this Court for a direction to the respondents to provide regular and uninterrupted electric supply in street lighting service in Gagan Vihar area which are inter alia developed by the petitioner. The petitioner's colony was incorporated and was registered under the Delhi Co-operative Societies Act; its members were approved by the concerned authorities. The Delhi Development Authority on 15.7.1980 approved building activity. It appears that the society took up the issue of electrification of the common areas and street lighting sometime in August 1981.
2. The petitioners have urged that a total amount of more than Rs. 14 lakhs were deposited with erstwhile DESU from time to time. The latter had charged Rs. 359916/- at the rate of Rs. 8595/- per acre for the total area. After electrification of the colony by the DESU, the MCD appears to have issued a general notice for the purpose of taking over services in the various colonies. It is claimed that the petitioner society made several representations for taking over the electricity services and supply to the street lighting in the colony.
3. The first bill which was impugned by the petitioner was for Rs. 1,81,574.52 dated 16.1.1987 for the period up to October 1986. Subsequently, the second impugned bill for total amount of Rs. 4,09,004.84 was issued.
4. The undisputed factual position as on date is that electricity supply for the common services in the society including street lighting is being undertaken by the successor to the DESU, namely, the BSES Yamuna Power Limited. It is also undisputed that the MCD is being billed for the said services.
5. Learned Counsel for the petitioner placed reliance on Section 42(o) of the Delhi Municipal Corporation Act and submitted that supply of electricity to the common areas and the street lighting is one of the obligatory functions of the MCD for which it cannot claim any separate charges from different localities or residents.
6. Rule was issued in those proceedings on 18.7.1987 and an interim order has been subsisting all these while injuncting the respondents from recovering any amount towards demands under the impugned bills.
Page 2802
7. The MCD has not filed its return. The DESU filed its return. It has sought to justify the levy of charges.
8. I am of the opinion, after having considered the materials on records and heard counsel for the parties that there is considerable merit in the submissions of the petitioner that once services are taken over in an approved colony by the corporation, by virtue of Section 42(o) of the Act the Municipal Authority is under an obligation to provide street lighting. Section 42 outlines the obligatory functions of the MCD. The phraseology used are indicative that the various functions listed, have to be mandatorily performed. Lighting of public places, as per Clause (o) is therefore a mandatory function.
9. A Division Bench of this Court, in the decision reported as the Refugees Co-op. Housing society Ltd. v. Municipal Corporation of Delhi 2nd 1972(1) Del. 725, had held as follows:
The section provides that "it is incumbent on the Corporation to make adequate provision by any means or measures which it may lawfully use or take, for each of the matters" enumerated in Clauses (a) to (x) of the section. The words "obligatory functions" and "incumbent" show that the provision in this section is mandatory, and that a statutory duty has been placed upon the Corporation to make adequate provision for each of the matters enumerated in the various clauses of the section, provided, of course, the requirements in the relevant clause or clauses of the section are satisfied in a given case. That the provision in Section 42 is mandatory is also clear from the contrast between this section and Section 43 which lays down "the discretionary functions of the Corporation" and provides that "the Corporation may in its discretion provides either wholly or in part for all or any of the... matters" enumerated in Clauses (a) to (z-a) of that section.
10. In view of the obligatory duty of the MCD to provide lighting of public spaces, it cannot claim the electricity charges for such mandatory services. This position is supported by the fact that for subsequent periods, the DESU (which at that stage a wing of the MCD) did not deem it appropriate to bill the petitioner.
11. For the foregoing reasons, the writ petition is entitled to succeed. The impugned bills are hereby quashed. Rule made absolute. No costs.
