Karnataka High Court

Sri Ashwin Jhoshua D Souza vs State Of Karnataka on 12 July, 2021

Author: M.Nagaprasanna

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 12TH DAY OF JULY, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.6231/2021 (GM- KEB)

BETWEEN:

SRI ASHWIN JOSHUA D' SOUZA
S/O JOHN D' SOUZA
AGED ABOUT 30 YEARS
RESIDING AT NO.34, SHATHIPURA,
ELECTRONIC CITY, 2ND PHASE
ANEKAL TALUK, BENGALURU - 560 099.
                                     ... PETITIONER
(BY SRI SUKUMARAN G., ADVOCATE (VIDEO
  CONFERENCING))

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS
       ADDITIONAL CHIEF SECRETARY
       DEPARTMENT OF ENERGY
       ROOM NO.206, 2ND FLOOR, VIKAS SOUDHA
       BENGALURU - 560 001.

2.     BESCOM
       REPRESENTED BY ITS
       MANAGING DIRECTOR
       HAVING ITS OFFICE AT K.R.CIRCLE,
       BENGALURU - 560 001.

3.     ASSISTANT EXECUTIVE ENGINEER (ELEC.)
       HAVING ITS OFFICE AT S -20
       SUB DIVISION, H.S.R LAYOUT
                               2



     BENGALURU - 560 102.

4.   SMT. NITHYA MURALIDHARAN
     D/O S.MURALIDHARAN
     AGE ABOUT 29 YEARS
     RESIDING AT NO. L - 79, 15TH CROSS,
     5TH MAIN, SECTOR -6, HSR LAYOUT
     BENGALURU - 560 102.
                                     ... RESPONDENTS
(BY SMT. M.C.NAGASHREE, AGA FOR R1;
    SMT. RAKSHITHA D.J., ADVOCATE FOR R2 AND R3;
    SMT. GEETA MENON, ADVOCATE FOR C/R4 (VIDEO
    CONFERENCING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.15.03.2021 BEARING NO.AEE/S-
20/AE-T/20-21/6903, VIDE ANNX-A, PASSED BY R-3 TO
THE PETITIONER'S SCHEDULE PREMISES ETC.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.06.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
                         ORDER

Petitioner in this writ petition calls in question an

order dated 15-03-2021 passed by the 3rd respondent

declining to restore electricity connection to the leased

premises of the petitioner.

2. This petition, though listed for orders, is taken

up for its final disposal with the consent of parties.

3. Heard Sri G. Sukumaran, learned counsel for

the petitioner, Smt. M.C.Nagashree, learned Additional

Government Advocate for Respondent No.1,

Smt. D.J. Rakshitha, learned counsel for respondent

Nos.2 and 3 and Smt. Geeta Menon, learned counsel for

respondent No.4.

4. Brief facts leading to the filing of the present

petition, as borne out from the pleadings are as follows:-

The petitioner is a tenant in the schedule premises

owned by the 4th respondent. It appears that the

petitioner entered into a rental agreement with the 4th

respondent on 18-12-2018 and pursuant to the same,

the petitioner was put in possession of the schedule

premises. The petitioner runs a gymnasium in the

schedule premises and claims to have paid rents

diligently. Notwithstanding his diligence, he receives a

legal notice from the landlady asking him to vacate the

premises on or before 22-01-2020, on such cause of

action. Claiming that the petitioner is on the threat of

dispossession from the schedule premises, approached

the jurisdictional Civil Court in O.S.No.858 of 2020 and

the said suit is pending consideration before the trial

Court.

5. During the pendency of the said suit, the

landlady communicates to respondent Nos.2 and 3 to

stop power supply to the schedule premises and the

petitioner claims that the landlady was threatening to

evict him from the schedule premises illegally.

Respondent No.3 issued a notice to the petitioner on 08-

09-2020, with regard to stoppage of power supply as

requested by the landlady, which the petitioner claims

to have replied. Challenging the said notice dated 08-

09-2020, the petitioner approached this Court in Writ

Petition No.12805 of 2020. This Court by its order

dated 20-01-2020, disposed of the writ petition with a

direction to the respondents/BESCOM to hear the

petitioner and then pass appropriate orders. It is after

the said order passed by the Co-ordinate Bench of this

Court in the aforesaid writ petition, the petitioner was

heard and an order dated 15.03.2021 was passed

confirming surrendering of installation by the landlady

and also confirming disconnection of electricity to the

schedule premises.

6. Learned counsel appearing for the petitioner

submits that the respondents have no right to deny

basic amenities to a tenent which includes connection

of electricity, as the petitioner would be put into

darkness as a result of disconnection of electricity,

which would take away his basic amenity. The

petitioner being a tenant residing in the schedule

premises owned by the 4th respondent and during the

subsistence of the agreement, the landlady could not

have surrendered installation with an ulterior motive to

drive away the petitioner from the premises.

7. On the other hand, Ms. Geeta Menon, learned

counsel appearing for caveator - 4th respondent would

submit that the petitioner had unauthorisedly

constructed certain portions of building and was in

huge arrears of rent and the landlady had decided to

demolish the entire structure and re-build the same, for

which reason, the agreement is terminated with the

petitioner and installation connection with BESCOM is

surrendered. No fault can be found with the action of

the landlady, is the emphatic submission of the learned

counsel.

8. Smt. D.J. Rakshitha, learned counsel appearing

for respondent Nos.2 and 3 would submit that the

landlady had issued a communication of surrendering

power connection that was provided to the property, the

petitioner was also issued with the notice, heard in the

matter and then surrendering of the connection was

accepted and the matter was closed. The tussle

between the petitioner and the landlady cannot result in

interest of BESCOM getting jeopardized.

9. I have given my anxious consideration to the

rival contentions of the parties and perused the material

on record.

10. It is not in dispute that the petitioner and the

landlady / 4th respondent entered into an agreement on

18-12-2018. The recitals in the agreement indicate that

it was for a period of 11 months effective from

19-12-2018, which could be extended for a further

period on consideration of enhancement of rent by

entering into a separate agreement and on completion of

six years from the date of commencement of tenancy.

Both parties in terms of the recitals have agreed to

revise the rent amount as per the market conditions. In

terms of the rent agreement which contained aforesaid

recitals, the petitioner was put in possession of the

schedule premises owned by the 4th respondent.

11. Fourth respondent owing to constant violation

of rental conditions and also default in payment of rent

as is contended in the statement of objections and on

the ground that rental agreement had expired on

15-11-2019, in view of it being entered into for a period

of 11 months, initially caused a legal notice upon the

petitioner on 22-01-2020, calling him to quit and hand

over possession of the schedule premises. The petitioner

did not respond to the legal notice but filed a suit in

O.S.No.858 of 2020 before the civil Court for injunction.

The petitioner after filing the suit, with the knowledge of

the owner, applied and obtained permanent power

connection from BESCOM which the landlady claims

that the petitioner has forged the signatures of the

landlady and then obtained electric connection.

12. On coming to know about the illegal power

connection in the name of the 4th respondent, without

her knowledge and consent, claiming that the petitioner

has done these acts after the rental agreement period

was over, the 4th respondent communicated a letter to

the 3rd respondent for surrender of connection. The

letter surrendering power connection reads that the

petitioner is in illegal possession of the schedule

premises, the lease agreement had been terminated in

the month of November, 2019 and he has not vacated

the premises. The request of the 4th respondent was not

to provide power connection and to withdraw the facility

already provided, immediately. The 3rd respondent

communicates to the landlady on 04-11-2020 with

regard to permanent surrender of power supply and

also marks copy to the petitioner. The communication

recites that the petitioner has submitted rental

agreement in terms of which, he claims that the rental

agreement is for 6 years and no documents have been

produced for extension of agreement beyond

17-11-2019 and he sought clarification from the 4th

respondent/landlady with regard to any extension of

rental agreement being given in respect of the premises.

To this, the landlady has replied stating that the rental

agreement has not been renewed and no further

agreement has been made and also requested the 3rd

respondent not to grant any permission to the petitioner

for connection as he has terminated the rental

agreement in the month of November, 2019.

13. The petitioner also replied to the said

communication stating that the landlady is trying to

evict him illegally against which, he has approached the

civil Court which is pending consideration and has also

filed police complaints for illegally removing electric

meter at the instance of the landlady. When no action

was taken on the reply given by the petitioner, the

petitioner approached this Court in Writ Petition

No.12805 of 2020 seeking to quash notices dated

08-09-2020 and 20-10-2020, by which objections were

called for, if any, within 7 days on the request of the

landlady for permanent surrender of power and if reply

would not be given, the power supply would be

disconnected. This Court after hearing the parties,

directed respondent No.3 therein, to hear both the

petitioner and the 4th respondent in the matter of power

supply and pass appropriate orders in accordance with

law, by keeping all the contentions of the parties open.

The petitioner and the 4th respondent/landlady were

heard on 12-03-2021 at 3.30 p.m. and the impugned

order is passed.

14. Though the impugned order in the first blush

looks to have been passed on 01-03-2021, it is passed

on 15-03-2021, as the hearing took place on

12-03-2021. By the impugned order, the respondent

No.3/BESCOM narrates about the agreement between

the parties and also the fact that there is no document

produced by the petitioner to prove the further

extension of lease from 17.11.2019. The 3rd respondent

concludes that the rental agreement was for a period of

11 months only with effect from 18-12-2018 and

interprets Clause 13 of the said agreement and seeing

the interest of the consumer, surrender of connection to

the existing installation was accepted by the 3rd

respondent.

15. This acceptance, in my considered view, is an

attempt of the 3rd respondent to overreach the

proceedings pending before the trial Court. O.S.No.858

of 2020 is filed by the petitioner against the 4th

respondent on the strength of the agreement itself. It is

his contention before the trial Court that the agreement

was for a period of 6 years and not 11 months.

Therefore, interpretation of the clauses in the agreement

is at large before the trial Court. The interpretation of

extension clause of the agreement directs connection of

electricity that is given by BESCOM to the schedule

premises. In the event, the trial Court were to hold that

the agreement was for a period of six years and a

finding is recorded that the petitioner is not in illegal

occupation of the premises, the act of BESCOM

accepting surrendering of power installation would be

illegal and BESCOM accepts surrender purely on

interpreting Clause 13 of the agreement, adjudication of

which is pending consideration before the trial Court.

16. Therefore, during the pendency of the said

proceedings before the trial Court it was not open to the

BESCOM to have accepted such request of surrender by

the landlady. It is apposite to refer the judgment of the

Co-ordinate Bench relied on by the learned counsel

appearing for the petitioner in the case of M/s. NOBLE

PLASTIC INDUSTRY v. KARNATAKA POWER

TRANSMISSION CORPORATION LIMITED AND

ANOTHER1, wherein this Court holds as follows:

"6. In the light of the rival contentions advanced by the learned Counsel appearing for

ILR 2001 KAR 108

the parties, the two questions that would arise for consideration in this petition are-

(1) Whether the impugned endorsement Annexure-D to the extent it is challenged, is liable to be quashed?

(2) Whether the petitioner is entitled for the award of any compensation by this Court on account of the disconnection of the electricity supply as alleged?

7. Now, let me examine the first question.

8. Before I proceed to decide the first question, it is necessary to consider the preliminary objection of Sri Gupta that since there is no privity of contract between the petitioner and the respondents, the Writ Petition filed by the petitioner is not maintainable. The objection relating to the maintainability of the Writ Petition is based on the ground that the petitioner not being a registered consumer of the respondents and the petitioner being only a tenant in respect of the premises in question, cannot compel the respondents to supply electricity energy to the installation bearing RR No. E-5/P-2091.

          (a) Regulation     2.05 of the
    Regulations defines     "consumer" as
    follows:




      "'Consumer' shall mean a person

whose installation is supplied with Electricity and/or who has executed an Agreement with the Board for supply of Electricity, and includes any person whose installation is, for the time being, connected for the purpose of receiving Electricity or whose installation has been disconnected."

(b) Regulation 2.15 defines "installation" as under:

"'Installation' shall mean the whole of the electric wires, fittings, motors and apparatus installed and wired by or on behalf of the Consumer on one and the same premises starting from the point of commencement of supply."

It may be that the agreement for supply of electrical energy to the installation bearing RR No. E-5/P-2091 was entered into between the landlord of the premises-the aforesaid Shankar Reddy and the respondents and, therefore, he may be the registered consumer. But, from that alone, it is not possible to take the view that a person, who is getting electricity supply through the installation located in the premises of which he is the tenant, is not entitled to challenge the illegal action, if any of the respondents. It cannot be disputed that the respondents have monopoly in

the matter of supply of electrical energy. It cannot also be disputed that the first respondent is an instrumentality of the State. The activities of the respondents are governed by the provisions of the Electricity Act and the Regulations. Therefore, the nature of the contract, in the matter of supply of electrical energy, is a statutory contract. The definition of "consumer" referred to above, is an inclusive definition. It provides for three categories of persons - (a) a person whose installation is supplied with the electricity; (b) a person who has executed an agreement with the Board for supply of electricity; and (c) a person whose installation is, for the time being, connected with the electricity supply or whose installation is disconnected with the electricity supply. Therefore, while the person who has executed an agreement with the Board, can undoubtedly be treated as a registered consumer, in my view, the two other categories of persons, referred to above, can also be treated as consumers of electricity supply from the Board. Therefore, when the electricity supply is obtained to a premises, in my view, the person in occupation of the premises even if he is not the owner of the premises and more particularly, when he is a tenant of the premises, should be treated as a

consumer of the electricity. Such a person would fail under the category of "any person whose installation is, for the time being, connected with the electricity supply or whose installation is disconnected with the electricity supply". Even otherwise, it should be held that a person in lawful occupation or possession of the premises in respect of which electricity supply is given through an installation, would be entitled for all the rights the consumer is entitled to enforce against the respondents and such a person also will be liable, to the respondents for all the liabilities of a consumer. If such a view is not taken, any dispute between the landlord and the tenant of a premises may deprive a tenant of his right to have continued supply of electricity to his premises, though such tenant or a person in lawful possession of the premises is entitled to continue in possession of the premises.

Therefore, in the view I have taken above, I am unable to accede to the submission of Sri Gupta that the petitioner is not entitled to maintain this petition.

9. Now, the next question is whether the impugned endorsement Annexure-D is liable to be quashed? Admittedly, there is no arrears of electricity charges in respect of the installation bearing RR No. E-5/P- 2091 located in the premises where the

petitioner is carrying on its business. In my view, merely because the landlord of the premises had instructed the respondents to disconnect the electricity supply to the installation located in the premises occupied by the petitioner and not to restore the same, is not a ground for the respondents either to disconnect the electricity supply to such an installation or to refuse to restore the same so long as, as noticed by me earlier, there is no arrears of electricity charges in respect of the said installation. The electricity and water are essential amenities of life. Any illegal interference in the supply of those amenities would seriously affect the life and liberty of a person. So long as a person is in occupation of a premises as a tenant and the relationship of landlord and tenant continues and so long as there is no arrears of electricity charges, in my view, it is not permissible for the respondents to disconnect the electricity supply to such an installation. It is necessary to point out that if the first respondent, who has taken over the sole right of distribution of electrical energy to the consumers in the State as on this date is permitted to disconnect the electricity supply to the premises occupied by the tenants at the behest of the landlords, it would result in irreparable injury and would interfere with the tenancy rights of the tenants to continue in the premises. Therefore, so long as there is no default on the part of the tenant or a person in occupation of a premises in which installation for supply of electrical energy is given by the

respondents, either in non-payment of electricity charges or violation of any of the conditions of the supply of electrical energy to the said installation, it is not permissible for the respondents to disconnect the electricity supply at the instance of the landlord. If there is any theft of electrical energy or misuse of electricity power in any manner, such a consumer, who is in occupation of the premises would be primarily liable to pay the electricity charges or any other penalty that may be leviable on the consumer by the respondents as per the Regulations of the respondents. However it is necessary to point out that when it is the primary liability of the person in occupation of the premises like the petitioner to pay the electricity charges to the respondents, it would not absolve the registered consumer of his liability in the event of the respondents not being able to recover the amount either towards electricity charges or penalty from the occupier of the premises. In a situation where the registered consumer permits any other person to occupy the premises and make use of the electrical energy, he would be liable to pay such, electricity charges and the penalty, if any, to the respondents along with the person who has been in occupation of the premises. Therefore, it was not permissible for the respondents to disconnect the electricity supply to the premises in occupation of the petitioner through installation bearing RR No. E-5/P-2091 at the instance of the landlord. Further, as noticed by me earlier, so long as the petitioner is not in arrears of electricity charges in respect of installation bearing RR No. E-5/P-2091, it was not permissible for the respondents to

disconnect the electricity supply to the installation located in the premises occupied by the petitioner on the ground that-in respect of installation bearing RR No. E-5/P-2364 located in the premises which is in occupation of some other persons, there was arrears of electricity charges, even though both the installations are in the same building. There is no dispute that the installations are two independent installations and the portions of the premises are-quite distinct and different though they are in the same building. Under these circumstances, the second reason given in impugned endorsement Annexure-D to refuse to restore the electricity supply to the installation of the petitioner bearing RR No. E-5/P-2091, as rightly pointed out by Sri Reddy, is erroneous in law."

(emphasis supplied)

Therefore, in the light of the afore-extracted judgment

rendered by this Court (supra) as also with regard to the

fact that the entire proceedings are pending before the

trial Court in O.S.No.858 of 2020, BESCOM could not

have interpreted the rental agreement and accepted the

surrender of connection by the landlady.

17. Learned counsel appearing for respondent

Nos.2 and 3 / BESCOM has also placed reliance upon a

judgment of the Co-ordinate Bench of this Court in the

case of MAHAVEER DISTRIBUTORS v. BANGALORE

ELECTRIC SUPPLY COMPANY2. The said judgment is