Page No.# 1/ vs Assam Power Distribution Company ...
2025 Latest Caselaw 1388 Gua

Gauhati High Court

Page No.# 1/ vs Assam Power Distribution Company ... on 23 July, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/11

GAHC010137742025




                                                             2025:GAU-AS:9452

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/3678/2025

         M/S D.R. CONSTRUCTION
         PROPRIETORSHIP CONCERN OF SRI PRAKASH RUPANI, HAVING ITS
         OFFICE AT TARUN NAGAR, BY LANE NO. 4, GUWAHATI, P.O. DISPUR, P.S.
         BHANGAGARH, DIST. KAMRUP (M), ASSAM, PIN 781005.

         2: SRI. PRAKASH RUPANI
          S/O. LATE K.C. RUPANI
         R/O. HOUSE NO. 38
         TARUN NAGAR
          BY LANE NO. 4
          GUWAHATI
          P.O. DISPUR
          P.S. BHANGAGARH
          DIST. KAMRUP (M)
         ASSAM PIN 781005

         VERSUS

         ASSAM POWER DISTRIBUTION COMPANY LIMITED AND 2 ORS
         (A GOVT. OF ASSAM UNDERTAKING) REGISTERED UNDER THE
         COMPANIES ACT, 1956, HAVING ITS OFFICE AT BIJULEE BHAWAN,
         PALTANBAZAR, GUWAHATI-1, P.O. PANBAZAR, P.S. PALTANBAZAR, DIST.
         KAMRUP (M), ASSAM.

         2:THE CHIEF EXECUTIVE OFFICER
          CIRCLE-II
         ASSAM POWER DISTRIBUTION COMPANY LIMITED
          JALUKBARI ELECTRICITY SUB-DIVISION
          JALUKBARI
          GUWAHATI
         ASSAM PIN 781012.

         3:THE SUB-DIVISIONAL ENGINEER
          JALUKBARI ELECTRICITY SUB-DIVISION
                                                                        Page No.# 2/11

          JALUKBARI
          GUWAHATI
          ASSAM PIN 781012
For the petitioners       : Mr. B. Nath, Advocate
For the respondents       : Mr. B. Choudhury, Advocate

                                   BEFORE
          HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                          Date of Hearing       : 23.07.2025

                          Date of Judgment       : 23.07.2025
                          JUDGMENT AND ORDER (ORAL)

Heard Mr. B. Nath, the learned counsel appearing on behalf of the petitioners and Mr. B. Choudhury, the learned counsel who appears on behalf of the APDCL.

2. The petitioners herein are engaged in the business of Real Estate Construction of flats, public apartments, commercial development and other allied business etc. The petitioners constructed a multi-storied building on a plot of land admeasuring 1 katha 10 lechas covered by Dag No.1661 (new), K.P. Patta No.469 (new) of village Gotanagar under Mouza- Jalukbari under Guwahati Revenue Circle in the district of Kamrup (M), Assam. The petitioners constructed the said building by entering into a Development Agreement with one Sri Sunil Chandra Baishya, who was the owner of the said plot of land. At the time of raising construction of the said building, a temporary electricity connection was taken for the purpose of the Page No.# 3/11

said building from the respondent APDCL Authority in the name of the landowner, Sri Sunil Chandra Baishya. Pursuant to the construction so made, the petitioner No.1 applied for a high tension service connection with a connected load of 74 KW.

3. The APDCL Authorities had informed the petitioner No.1 that there would be a requirement of a construction of a 11 KV line along with installation of 11/0.433KV, 1 X 100KVA Transformer Sub-Station to feed load to the tune of 74 KW and in that regard, provided an estimate of Rs.12,28,814.18p. Pursuant to such estimate being provided, the petitioner No.1 submitted two communications to the Sub-Divisional Engineer, Jalukbari Electrical Sub-Division who is the respondent No.3. In the first communication, the petitioner No.1 took the responsibility of supplying the 11/0.433KV,1 X 100KVA Transformer along with requisite materials for construction of the 11KV line and 1 X 100 KVA Transformer at the premises. By the second communication, the petitioners undertook to provide the right of way for construction of the said 11/0.433KV, 1 X 100KVA Transformer Sub-Station along with the service line. However, alleging that there has been a delay on the part of the Respondent Authorities in providing the high tension connection, the petitioners have approached this Court by filing the present writ petition.

4. The writ petition was taken up by this Court on 27.06.2025 Page No.# 4/11

when Mr. B. Choudhury, the learned Standing Counsel of the APDCL submitted that the petitioners though had submitted the undertaking that they would be providing the Transformer as well as the right to way for construction of the 11 KV service line, but the petitioners did not live up to their undertaking. He further submitted that there were certain local persons who are objecting and preventing the workers of the APDCL from erecting the necessary poles for the said 11 KV line and as the petitioners have failed to provide the right of way, the APDCL Authorities are not in a position to provide the high tension connection. On the basis of the said submission, the matter was directed to be listed before this Court on 22.07.2025.

5. On 22.07.2025, the learned counsel appearing on behalf of the petitioners submitted that the petitioner No.1 would provide the Transformer as well as the space within the premises wherein the building is constructed for mounting of the Transformer and in respect to the objection raised by the APDCL Authorities as regards the right of way, the learned counsel for the petitioners placed before this Court the judgment of the Supreme Court in the case of Chandu Khamaru vs. Nayan Malik and Others , reported in (2011) 12 SCC 314. This matter upon being heard and taking into account, that the materials on record do not specifically show as to what right of way, the petitioners were Page No.# 5/11

required to provide, this Court fixed the matter today so that both the counsels are in a position to address on the aspect of the right of way.

6. Mr. B. Choudhury, the learned counsel appearing on behalf of the APDCL Authorities placed before this Court a diagram of the proposed line of M/S D. R. Construction. The said diagram so placed is kept on record and marked with the letter "X". A perusal of the said diagram reveals that there is a public road which is a bye lane of 13 feet width and the said bye lane abuts the land of the petitioners wherein the multi-storied building have been constructed.

7. Mr. B. Nath, the learned counsel appearing on behalf of the petitioners further produced photographs in respect to the building in question which is not disputed and from the said photographs, it appears that the building of the petitioners abuts with the bye lane. The said photographs are collectively kept on record and marked with the letter "Y".

8. In the backdrop of the above, the question therefore arises as to what direction this Court is required to pass in exercise of the jurisdiction under Article 226 of the Constitution.

9. This Court duly takes note the judgment of the Supreme Court in the case of Chandu Khamaru (supra) wherein the issue Page No.# 6/11

involved was that the appellant in the said proceedings sought for supply of electricity from the distribution licensee. But when the distribution licensee did not provide the electricity connection, he filed a writ petition before the Calcutta High Court. The Calcutta High Court vide the order dated 23.09.2004 disposed of the writ petition thereby directing the distribution licensee to effect supply of electricity to the house of the appellant therein within 6 weeks from the date of compliance with all the formalities by the appellant. Pursuant thereto, the distribution licensee gave an electricity connection and started supplying electricity to the house of the appellant therein. The private respondents in the said proceeding before the Supreme Court filed another writ petition claiming that they were the owners of the land in question and sought for disconnection. The Calcutta High Court vide another order dated 13.02.2006 allowed the said writ petition filed by the private respondents and directed the distribution licensee to disconnect the supply of electricity given to the appellant therein for using the land. Being aggrieved, an Appeal was preferred before the learned Division Bench of the Calcutta High Court and the Appeal was dismissed. Resultantly, the matter proceeded to the Supreme Court.

10. The Supreme Court, taking into account the provisions of Sections 42, 43 and 67 of the Electricity Act, 2003 observed that Page No.# 7/11

the appellant therein had a statutory right to apply for and obtained the supply of electricity from the distribution licensee and the distribution licensee had a corresponding statutory obligation to supply electricity to the appellant. The Supreme Court further taking into account the inter se disputes between the appellant and the respondents Nos.1, 2 & 3 in the said proceedings observed that the said disputes are to be resolved before the Civil Court and pending resolution of such dispute, the appellant therein could not be denied the electricity. Paragraph Nos.7, 9, 10, 11 & 12 of the said judgment being relevant are reproduced herein under:-

"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, coordinated 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 supply of electricity of the distribution licensee, if such owner or occupier of Page No.# 8/11

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.

9. Thus, sub-section (1) of Section 67 of the Electricity Act, 2003 provides that the licensee may, from time to time, but subject always to the terms and conditions of his licence, within the area of supply carry out the works mentioned in clauses (a) to (f) therein. It is provided in clause (d) of sub-section (1) of Section 67 that the licensee may lay down and place electric lines, electrical plant and other works. Sub-section (2) of Section 67 of the Electricity Act, 2003 further provides that the appropriate Government may, by rules made by it in that behalf, specify the various matters mentioned in clauses (a) to (p) thereof.

10. Under clause (a) of sub-section (2) of Section 67, the appropriate Government may, by rules, specify the cases and circumstances in which the consent in writing of the appropriate Government, local authority, owner or occupier, as the case may be, shall be required for carrying out works. Under clause (b) of sub-section (2) of Section 67, the appropriate Government may, by rules, specify the authority which may grant permission in the circumstances where the owner or the occupier objects to the carrying out of works.

11. We may now apply the aforesaid provisions of the Electricity Act, 2003 to the facts of the present case. The appellant has a statutory right to apply for and obtain the supply Page No.# 9/11

of electricity from the distribution licensee and the distribution licensee has a corresponding statutory obligation to supply electricity to the appellant. Respondents 1 to 3 also do not object to the supply of electricity by the distribution licensee to the appellant as it will be clear from the averments made in Writ Petition No. 345 of 2005 filed by them before the High Court but they object to the line for supply of electricity being drawn through the passage in Dag Nos. 406, 407 and 409 which they claim to be theirs. The further grievance of Respondents 1, 2 and 3 is that they were not made parties in the earlier Writ Petition No. 18220 of 2004 filed by the appellant in which the High Court directed the distribution licensee to effect supply of electricity to the house of the appellant.

12. The case of the appellant, on the other hand, is that this passage is not a private passage of Respondents 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 the Civil Judge (Junior Division), Howrah, or in any other suit, but pending resolution of this dispute between the parties, the appellant cannot be denied the supply of electricity to his house."

11. The above principles so laid down by the Supreme Court and applying the same to the facts of the instant case it would be apparent that the petitioners herein are entitled to have an electricity connection as sought for and the Respondent Page No.# 10/11

Authorities are also statutorily obligated to provide the connection. However, the said right to have an electricity connection is subject to fulfilling of the formalities which the petitioners are required as per the law.

12. In the instant case, it would be seen that the petitioners are required to provide the Transformer as well as the place wherein the Transformer is required to be mounted within the land wherein the building of the petitioners have been constructed.

13. This Court also takes note of the difficulties as expressed by Mr. B. Choudhury, the learned counsel appearing on behalf of the APDCL as regards certain disturbances caused by certain local people in the erection of the poles for the purpose of drawing the service line from the main road to the premises of the petitioners. It surprises this Court to take note of how authorities can be disturbed/restrained by local persons to perform their statutory duty when the road abutting the petitioners' building is a public byelane. In the opinion of this Court, if there is any disturbance caused, the APDCL Authorities can very well take the help of the Police Authorities in that regard.

14. Accordingly, the instant writ petition stands disposed of with the following observations and directions:

(i) The petitioners herein are entitled to the electricity Page No.# 11/11

connection as sought for. The said entitlement is subject to fulfillment of the formalities by the petitioners and more particularly providing the Transformer as well as the place where the Transformer is to be mounted within the land whereupon the building has been constructed.

(ii) The Respondent Authorities herein are directed to provide the high tension electricity connection to the petitioners, subject to the petitioner fulfilling his formalities.

(iii) This Court grants liberty to the Respondent Authorities to take the help of Police Authorities, if there is any disturbance caused by any third party in discharge of its statutory duties. The Officer-in-Charge of Jalukbari Police Station is directed to assist the APDCL Authorities in the circumstance any complaint is being filed as regards any disturbance caused.

(iv) The said exercise be completed within 30 days from the date of the petitioners provide the Transformer as well as the place for mounting of the Transformer within the land wherein the building has been constructed.

JUDGE

Comparing Assistant