Jharkhand High Court
Mahendra Choudhary vs Jharkhand Urja Vikas Nigam Limited on 1 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
--------
L.P.A. No. 435 of 2018
------
Mahendra Choudhary, son of late Shiv Shankar Choudhary, aged about 53
years, Resident of Panchgadhi Bazar, P.O. & P.S. Katras, District-
Dhanbad.
... ... Appellant/Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited, having its office at Engineers'
Bhawan, HEC, Dhurwa, PO & PS-Dhurwa, District-Ranchi, through its
Chairman-cum-Managing Director at Engineers' Bhawan, HEC,
Dhurwa, PO & P.S. Dhurwa, District-Ranchi.
2. The General Manager-cum-Chief Engineer, Electric Supply Area,
Dhanbad, Jharkhand Bijli Vitaran Nigam Limited, PO & PS-Dhanbad,
District-Dhanbad.
3. Electrical Superintending Engineer, Electric Supply Circle, Dhanbad,
Jharkhand Bijli Vitran Nigam Limited, PO and PS-Dhanbad, District-
Dhanbad.
4. Electrical Executive Engineer (Commercial & Revenue), Electric Supply
Circle, Dhanbad, Jharkhand Bijli Vitran Nigam Limited, PO & PS-
Dhanbad, District-Dhanbad.
5. The Assistant Electrical Engineer, Electric Supply Sub Division,
Jharkhand Bijli Vitran Nigam Limited, P.O. & P.S.-Katras, District-
Dhanbad
6. Brajesh Kedia, son of late Ashok Kumar Kedia, resident of Rani Bazar,
Katras, PO+PS-Katras, District-Dhanbad and presently residing t R/o E-
5/50, 1st Floor, Rohini Sector 16, P.O. Rohini, P.S. K.N. Karju Marg,
Dist.-North West New Delhi, 110089.
.. ... Respondents/Respondents
With
L.P.A. No. 429 of 2018
------
Mahendra Choudhary, son of late Shiv Shankar Choudhary, aged about 53
years, Resident of Panchgadhi Bazar, P.O. & P.S. Katras, District-
Dhanbad.
... ... Appellant/Respondent No.4
Versus
1. Jharkhand Urja Vikas Nigam Ltd., through Chairman cum Managing
Director, having its office at Engineers' Bhawan, PO & PS-Dhurwa,
District -Ranchi.
Page 1 of 14 L.P.A. No. 435 of 2018 & Anr.
2. The Assistant Electric Engineer, Electric Supply Sub Division Katras,
JUVNL, Jharkhand State Electricity Distribution Corporation, PO & PS-
Katras Town, District- Dhanbad.
3. The Sub Divisional Officer, Electric Supply Sub-Division Katras,
JUVNL, Jharkhand State Electricity Distribution Corporation, PO & PS-
Katras Town, Dist.-Dhanbad.
... ... Respondents/Respondents
4. Brajesh Kedia @ Brijesh Kumar Kedia, s/o Late Ashok Kumar Kedia, R/o
E-5/50, 1st Floor, Rohini Sector 16, P.O. Rohini, P.S. K.N. Karju Marg,
Dist.-North West New Delhi, 110089.
... ... Respondent/Petitioner
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mr. Saket Upadhyay, Advocate
Ms. Sweta Rani, Advocate
For the Respondents : Mr. B.B. Sinha, Standing Counsel
.....
07/Dated: 01st May, 2024
Per Sujit Narayan Prasad, J.:
1. The instant appeals under clause 10 of the letters patent are directed
against the order/judgment dated 10.04.2018 passed by the learned
Single Judge in W.P.(C) No. 7709 of 2017 and W.P.(C) No.5568 of
2017 respectively, whereby and whereunder, the order dated
02.05.2017 passed in Appeal No. EOJ/03/2017 by the Electricity
Ombudsman, Jharkhand has been quashed and set aside by allowing the
writ petition.
2. The brief facts of the case as per the pleading made in the writ petition
which requires to be enumerated herein, reads as under:
The appellant is a businessman, working in the trade of Kirloskar
Motor Pump and allied hardware stores, working for gain and
livelihood for himself and his family members and entire family is
depending upon the income derived from this business, namely- M/s
Swastik Traders Ltd.
The appellant made an application with respondent Nigam for a
new commercial electric connection, which was acknowledged and
issued money receipt bearing SL. No. JB1256800 for Rs. 1240/- dated
20.10.2014, receipt No. Nil dated 10.07.2014 for Rs. 20/- and receipt
No. 346 dated 20.10.2014 for Rs. 155/- and a receipt of Rs. 40/- on
account of Service connection no. 486074 dated 20.10.2014 and
accordingly; a meter has been allotted, which was further installed
within the premises and thereby admitted as consumer but since then
and until now no Electrical connection has been provided, although
electrical pole to meter wire has also been erected causing huge loss to
appellant's business. Thereafter, appellant approached to the
Respondents on several occasions for providing electrical connection
but unfortunately no heed or proper reply was conveyed in this regard.
Thereupon, appellant not being addressed to his grievances filed
his representation by way of application on 31.07.2015 and on
11.08.2015 by speed post but having no alternative choice, appellant
preferred a legal notice, dated 10.10.2015, through his legal law firm
M/s A.A. Kumar & Co. Dhanbad, which was not at all replied by
respondent except a letter from the respondents vide their memo no.
203 dated 28.10.2015, which was posted on 26.11.2015 and further it
was received by the advocate of appellant on 27.11.2015. The reply
made by Respondent is partly correct and partly admitted but it is
totally denied that appellant has ever been default from his side in the
light of the fact that he is simply tenant and is no way connected in the
internal dispute thin the family of landlord and therefore debarring a
person from essential commodity, like electricity connection, can not
be straightaway declined and it also affect that there is no law as such
to deprive a consumer from electrical power.
Further case of the appellant is that on enquiry from the
successors of the landlord, Late Ashok Kedia, it was conveyed to the
Appellant that the property, described as aforesaid, has been procured
by Late Ashok Kumar Kedia in the name of his son- Brajesh Kedia
while, Brajesh Kedia was at the age of 16 year and thereafter Brajesh
Kedia married at his own will and wishes and thereafter from the last
20 years he is residing in Delhi and has never returned back to claim his
right title or interest in the said property during the life time of his
demised father Ashok Kedia.
Further case of the appellant is that the Appellant and Late
Ashok Kedia had entered into a rent agreement on 09.07.2014 for a
period of three years and the same document was submitted before the
Respondent Nigam to procure the electric supply but on sad demise of
Ashok Kedia on 15.06.2015, Respondent-Brajesh Kedia sprang of and
made diverse act of making disputes in the family in various ways,
including a Title Suit no. 139 of 2014, which is pending and subjudice
before competent court of law at Dhanbad and therefore in order to
make an objection, it needs to be obtained necessary restraining order
from the court of law for making objection before the respondents
which not yet provided to respondent. As matter of fact, after the death
of the Late Ashok Kumar Kedia, his widow namely Kaushalya Devi
permitted the Appellant to occupy the shop and gave her in writing.
That in light of the aforesaid fact and circumstances the
unilateral action taken by the Nigam for not supplying electricity upon
objection, is arbitrary and is a gross act of deficiency in service by not
providing electrical connection without obtaining judicial order from
the competent court of law and also in absence of any standing order of
law or in view of any judicial order from the Hon'ble Apex court of the
land. Out of the same shop and agreement, the appellant has obtained
telephone connection from BSNL without any agitation and protest.
Further case of the appellant is that he even wrote the
Respondent on 31.07.2015 to supply the electricity as he was facing
serious adversity for no fault on his part. But as mentioned earlier the
Respondent have not bothered to redress the grievances of the
appellant. Hence being aggrieved by the inaction of the Respondent
Nigam, the appellant was compelled to move before the Learned
VUSNF, Hazaribag for redressal of his grievance by filing CC No.
22/2016 which was heard on admission and after being satisfied with
the contention of the Appellant vide order dated 11.01.2016 an interim
relief was granted to provide electrical supply to the Appellant and
accordingly; the electricity supply was made to the Appellant and
electric bills were raised by the Respondent Nigam as per the
consumption and the payment was accordingly made for electrical
supply. For electrical connection, lease/rent agreement was a pre-
requisite and the same was entered into by the Appellant with Ashok
Kedia and during the entire episode, Brajesh Kedia was nowhere in the
picture. The appellant is fulfilling all the criteria which has been
mentioned in his rent agreement and all the property is the joint
property of Ashok Kedia.
Ashok Kedia made rent agreement with the appellant on
09.07.2014 for three years. Thereafter, the court of VUSNF,
Hazaribagh rejected the petition of the appellant vide order dated
27.02.2017.
The appellant being aggrieved with the order dated 27.02.2017
passed in C.C. No. 22 of 2016, approached the Electricity Ombudsman
at Ranchi by filing an appeal being EOJ No.03 of 2017 wherein the
order/judgment dated 02.05.2017 passed by the VUSNF, Hazaribagh
was set aside and the appeal was allowed.
Being aggrieved with the same, writ petition being W.P.(C) No.
5568 of 2017 was filed by Brijesh Kedia @ Brijesh Kumar Kedia
[respondent no.4 of L.P.A. No. 429 of 2018] wherein the
order/judgment dated 02.05.2017 has been set aside by allowing the
writ petition and another writ petition being W.P.(C) No. 7709 of 2017,
filed by Mahendra Choudhary [appellant of L.P.A. No. 435 of 2018],
had been dismissed in view of the order passed in W.P.(C) No. 5568 of
2017, against which the present appeals have been preferred.
3. It is evident from the factual aspect that the appellant is claiming the
legal occupancy on the basis of the agreement dated 09.07.2014
executed in his favour by one Ashok Kumar Kedia (now deceased) and
adjoining to the said land, one Brajesh Kedia had also purchased a land.
The father of Brajesh Kedia, respondent herein, has entered into
an agreement in favour of the appellant on 09.07.2014 about the
aforesaid land. The appellant made an application for getting electricity
connection but the same was not granted on the ground that the
appellant has not produced the relevant documents to substantiate his
legal occupancy as required under the provision of clause 5.5.5 of the
Supply Code.
The appellant moved to the Vidyut Upbhokta Shikayat Niwaran
Forum, Hazaribagh being Case No. 22 of 2016 which finally vide order
dated 27.02.2017 was dismissed. The appellant being aggrieved with
the same, approached to the Electricity Ombudsman, Jharkhand being
Case No. EOJ/03/2017.
The learned Tribunal has allowed the appeal and quashed and set
aside the order passed by the forum with a direction that the electricity
connection in the shop in question which was already restored by
respondent nos.1 and 2 in pursuance of the order dated 07.04.2017
passed by the forum and by virtue of the same, the appellant is enjoying
electricity connection till July, 2017 as per his deed of agreement of
rent.
It has further been observed in the said order that the deed of
agreement of rent is going to end in the month of July, 2017. If his
agreement of rent is further extended then, it is duty of appellant to
inform the respondent for its continuity.
The said Brajesh Kedia preferred a writ petition against the order
dated 02.05.2017 passed by the Ombudsman being W.P.(C) No. 5568
of 2017. The learned Single Judge of this Court has allowed the writ
petition by quashing and setting aside the order passed by the
Electricity Ombudsman on the ground that the condition stipulated
under the Supply Code under clause 5.5.5 thereof since has not been
complied with and further the premise upon which the electricity
connection is being sought for, the title over the same is in dispute since
a Title Suit No. 139 of 2014 is pending before the competent court of
civil jurisdiction.
The appellant being aggrieved with the same, is before this Court
by filing the instant appeals.
4. Mr. Saket Upadhyay, learned counsel for the appellant has submitted
that the learned Single Judge while quashing and setting aside the order
passed by the Electricity Ombudsman, Jharkhand has not appreciated
the fact in right perspective on the ground that the electricity
connection was sought for on the basis of occupancy over the premises
in question which was established due to the agreement executed by the
late father of the writ petitioner of W.P.(C) No. 5568 of 2017 with the
appellant.
5. The question of title is not to be looked by the electricity authority
rather the electricity authority is only to look into the occupancy over
the property in question which is already there but without considering
the same, the request to provide electricity connection was rejected by
the forum but the Electricity Ombudsman after taking into
consideration the fact that the occupancy was there of the appellant
over the land in question, which has been considered to be sufficient
compliance for the purpose of getting electricity connection, has
allowed the appeal.
6. The learned counsel for the appellant, in view of the aforesaid premise,
has submitted that since the appellant is occupier and hence, there is no
question to dispute or to deny the electricity connection in favour of the
appellant which having not been taken into consideration either by the
Electricity Ombudsman, Jharkhand or by the learned Single Judge of
this Court, the present appeals have been preferred.
7. Per contra, Mr. B.B. Sinha, learned standing counsel appearing for the
JUVNL while defending the order passed by the learned Single Judge
as also the forum has submitted that the electricity connection is to be
provided in favour of one or the other applicant on the basis of the
regulation made under the Supply Code which has got statutory force.
8. The Electricity Supply Code (Regulation), 2015 has been formulated in
exercise of power conferred under Clause (x) of sub-section (2) of
Section 181 read with Section 50 of the Electricity Act 2003, as such,
the same is having statutory force.
9. It has been contended that one of the conditions under clause 5.5.5 of
the Supply Code (Regulation) 2015 wherein process has been given
under the aforesaid provision is to have the proof of applicant's
ownership or legal occupancy of the premises for which new
connection is being sought for.
It has also been contended that the appellant has not complied
with the said condition stipulated under clause 5.5.5 of the Supply Code
(Regulation) 2015 and hence, if in that premise, the electricity
connection has been denied the same cannot be said to suffer from
error.
It has further been contended responsing to the ground taken by
the learned counsel for the appellant that he is in occupation of the
premises in question by advancing his submission that the same has
been taken care of by the forum as also by the learned Single Judge
wherein requirement to get the electricity connection is not said to be
sufficient only on the basis of the occupation of the premises rather it
must be legal occupation.
10. Herein, it is not in dispute that the premises in which the electricity
connection is being sought for is having title dispute in between the
writ petitioner of W.P.(C) No. 5568 of 2017, who is respondent here,
and his mother (wife of Late Ashok Kumar Kedia) which is lying
pending for its consideration before the competent court of civil
jurisdiction being Title Suit No. 139 of 2014.
11. The learned counsel, based upon the aforesaid ground, has submitted
that if on the aforesaid premise of not complying the condition as
stipulated under clause 5.5.5 of the Supply Code, the electricity
connection has not been provided, a decision to that effect by the
authority concerned cannot be said to suffer from error.
The order which has been passed by the forum by accepting the
ground taken by the competent authority, therefore, also cannot be said
to suffer from error and further the order passed by the learned Single
Judge also cannot be said to suffer from error.
12. This Court has heard the learned counsel for the parties and gone across
the finding recorded by the learned Single Judge in the impugned order.
13. This Court, before entering into the legality and propriety of the
impugned order, needs to refer herein the undisputed fact which is
available on record, i.e., the appellant made an application for getting
the electricity connection on the portion of the premises of which title is
being claimed by one Brajesh Kedia, the respondent herein, who is said
to have purchased the property by virtue of registered sale deed.
The occupancy which is being claimed by the appellant over the
premises in question is based upon an agreement dated 09.07.2014
which was said to be entered with him by late father of Brajesh Kedia.
The late father of Brajesh Kedia had died and thereafter, the
mother of Brajesh Kedia also entered into agreement with the appellant
on 07.07.2017 and based upon the same, the appellant is claiming to
have the legal possession over the land in question.
But, the dispute arose with respect to the title of the property of
the premises in question in between the respondent Brajesh Kedia and
his father and his mother which is pending before the competent
authority of civil jurisdiction in the district of Dhanbad being Title Suit
No. 139 of 2014.
14. The appellant on the basis of his claim that he is to be considered as
legal occupant has made application for getting the electricity
connection. The same has been denied based upon the reason that the
condition as stipulation under clause 5.5.5 of the Supply Code has not
been complied with. The reason for refusal of the electricity connection
has been said to be unjustified by the learned counsel for the appellant
on the ground that even if the title dispute of the premises in question is
there, but admittedly, the right to get the electricity connection in the
capacity of tenant cannot be denied.
15. While on the other hand, learned counsel for the respondent-JUVNL
has submitted that the electricity connection is to be provided strictly in
pursuance of the condition stipulated under the Supply Code.
16. This Court, after appreciating the aforesaid argument advanced on
behalf of the parties, needs to refer herein that if a mechanism has been
carved out to take any action by the authority concerned the same is
strictly to be followed where the same has been provided under the
statutory provision on the basis of the principle that a thing is to be
done as per the statutory provision by its strict adherence. Reference in
this regard be made to the judgment rendered by the Hon'ble Apex
Court in Babu Verghese and Ors. vs. Bar Council of Kerala and Ors.,
[(1999) 3 SCC 422], wherein at paragraphs 31 & 32 it has been held as
under: ―
"31. It is the basic principle of law long settled that if the manner of
doing a particular act is prescribed under any statute, the act must
be done in that manner or not at all. The origin of this rule is
traceable to the decision in Taylor v. Taylor which was followed by
Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
―
[Where a power is given to do a certain thing in a certain way,
the thing must be done in that way or not at all.
32. This rule has since been approved by this Court in Rao Shiv
Bahadur Singh v. State of V.P. and again in Deep Chand v. State of
Rajasthan. These cases were considered by a three-judge bench of
this Court in State of U.P. v. Singhara Singh and the rule laid down
in Nazir Ahmad case was again upheld. This rule has since been
applied to the exercise of jurisdiction by courts and has also been
recognized as a statutory principle of administrative law."
17. The purpose for referring the aforesaid judgment is that a mechanism
has also been carved out under the Supply Code which has been
formulated in exercise of power conferred under Clause (x) of sub-
section (2) of Section 181 read with Section 50 of the Electricity Act
2003 wherein under clause 5.5.5, an application is to filed by the
applicant who is seeking electricity connection along with the proof of
ownership or legal occupancy over the premises. For ready reference,
clause 5.5.5 is being referred as under:
"5.5.5 Requisition for new supply of electricity shall be made in
duplicate in the prescribed format of application form. Application
forms must be accompanied with a photograph of the applicant
(one each on the duplicate copies), identity proof of the applicant,
proof of applicant's ownership or legal occupancy over the
premises for which new connection is being sought, proof of
applicant's current address, and in specific cases, certain other
documents as detailed in clauses 5.5.7 - 5.5.12 of these
Regulations. The applicant shall also provide the name, address,
licence number and contact number of the Licensed Electrical
Contractor who will certify the wiring works pertaining to the
premises. The applicant is also required to mention whether he/she
wants to carry out the works of laying service line and/or dedicated
distribution facility for the electricity supply requisitioned."
18. It also needs to refer herein that the electricity connection is to provided
as per the stipulation made under the provision of Section 42 (3) of the
Electricity Act, 2003 wherein it has been stipulated that the electricity
connection is to provided as per the mechanism carved out in the
Supply Code. For ready reference, Section 42(3) of the Electricity Act,
2003 is being referred as under:
"42(3) Where any person, whose premises are situated within the
area of supply of a distribution licensee, (not being a local authority
engaged in the business of distribution of electricity before the
appointed date) requires a supply of electricity from a generating
company or any licensee other than such distribution licensee, such
person may, by notice, require the distribution licensee for wheeling
such electricity in accordance with regulations made by the State
Commission and the duties of the distribution licensee with respect to
such supply shall be of a common carrier providing non-
discriminatory open access."
19. It is thus evident that the bearing of clause 5.5.5 of the Supply Code
(Regulation), 2015 is having statutory bearing in its observance in view
of the provision of Section 42 of the Electricity Act, 2003, therefore,
whatever condition has been stipulated under clause 5.5.5 of the Supply
Code is strictly to be adhered to in order to have the observance of the
statutory command as provided under Section 42 of the Electricity Act,
2003.
20. The condition as per clause 5.5.5 is either the proof of applicant's
ownership or legal occupancy. Admittedly herein, the appellant is not
having the title over the premises in question but he is claiming the
electricity connection on the basis of the occupancy over the premises.
The occupancy itself is not a condition for consideration of electricity
connection but the occupancy must be a legal occupancy. The legal
occupancy means that a person who is in occupation of the land is
holding the occupancy on the basis of a valid document either by way
of lease or agreement.
21. It needs to refer herein that herein the agreement is there in favour of
the appellant but the agreement which was executed is by the mother of
Brajesh Kedia. However, earlier to that, an agreement was entered with
the father of Brajesh Kedia.
But, question is that whether the said agreement can be said to be
a valid document to proof the local occupancy in a case where a serious
dispute of title is there in between the parties over the premises in
question.
22. The matter of title is pending before the competent court of civil
jurisdiction at Dhanbad being Title Suit No. 139 of 2014 and hence,
legality is still is to be decided by the said court with respect to the
holding of the said property, as such, in absence of a declaration to that
effect by the competent court of civil jurisdiction regarding the title of
one or the other who are party to the suit, if any agreement has been
entered by a person who is party to the suit with the appellant, the said
agreement cannot be said to be valid proof of occupancy said to be
legal occupancy.
23. Therefore, this Court is of the view that in the admitted fact of the case
that a dispute of title is there with respect to the premises in question in
between the parties over which the appellant is calming his tenancy
right based upon the agreement it cannot be said to be a legal
occupancy.
Therefore, in absence of legal occupancy, the requirement as
stipulated under clause 5.5.5 of the Supply Code cannot be said to be
available.
24. The aforesaid fact has been considered by the forum which led the
forum to reject the claim of the appellant, however, the Ombudsman
has reversed the said order on the ground that although the reference of
clause 5.5.5 of the Supply Code, 2015 has been made but without
properly appreciating the condition/requirement stipulated under the
Supply Code the Ombudsman came to the conclusion that no objection
certificate is required from the owner of the premises even though the
Ombudsman came to the conclusion that serious dispute of title and
ownership is there but since the same is only to be decided by the
competent court of civil jurisdiction but even then the order passed by
the forum has been set aside.
25. This Court fails to understand that on the one hand the consideration
was given about the pendency of the title suit in between the parties,
not the appellant herein, but even then the requirement as per clause
5.5.5 of the Supply Code has completely been discarded.
26. We have already referred the ratio laid down by the Hon'ble Apex
Court that if any statutory provision is mandated then there must be
strict compliance of the same and thing is to be done strictly in
accordance with the statutory provision and there cannot be any
deviation from that.
27. Herein, the Ombudsman has given go-by to the statutory requirement
as provided under clause 5.5.5 of the Supply Code and hence, the same
cannot be said to be proper appreciation of the factual aspect vis-à-vis
legal issues involved in the present case.
28. This Court, after discussing the factual aspect, is now coming to the
order passed by the learned Single Judge and has found therefrom that
the learned Single Judge has appreciated the aforesaid fact particularly
the dispute of title over the premises in question. The said consideration
led the learned Single Judge to interfere with the impugned order
passed by the Ombudsman dated 02.05.2017 passed in Appeal
No.EOJ/03/2017.
29. This Court, therefore, is of the view that the order passed by the learned
Single Judge based upon the reasons assigned hereinabove, cannot be
said to suffer from error.
30. Accordingly, both the instant appeals lack merit and stand dismissed.
31. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.)
Saurabh / A.F.R.
