Telangana High Court

Mirza Younis Baig vs The State Of Telangana on 1 May, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

             WRIT PETITION No.12077 OF 2024

ORDER:

Heard Mr. Mirza Nisar Ahmed Baig Nizam,

learned counsel for the petitioners, learned Assistant

Government Pleader for Energy, appearing on behalf of

respondent No.1, Mr. Zakir Ali Danesh, learned

Standing Counsel appearing on behalf of respondent

Nos. 2 to 4 and Ms. Deepthi, learned counsel appearing

on behalf of respondent Nos.5, 6 and 7.

2. The petitioner approached the Court seeking

prayer as under:

" ... to issue an a Writ more particularly one in the nature of Mandamus declaring the action of the respondents more particularly respondent Nos. 2 to 4, 7 herein in disconnecting electricity connection for electricity meter bearing USC No. 14986974 SC No. 50022-91287 & USC No. 14990483 SC No. 50022- 99020 at premises bearing H.No.5-6-735, Yellammagutta X Road, Saraswathi Nagar, Road No. 1, Nizamabad, Telangana for alleged default of payment of electricity charges despite no dues or arrears in disconnecting electricity supply without issuing 15 days prior notice as required U/s 561 of

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The Electricity Act 2003 in disconnecting electricity connection on the very same day vide alleged notices dated 27/04/2024 in harassing the petitioners continuously to sell off petitioners property to unofficial respondent Nos. 5 and 6 herein as illegal arbitrary and in clear violation of The Electricity Act 2003 against the legal and fundamental rights of the petitioners against the principles of natural justice and in consequence direct respondents herein to restore electricity connection to petitioners immediately not to harass petitioners and pass such other and further orders as deemed just and necessary in the facts and circumstances of the case".

3. The case of the petitioners, in brief, as per the

averments made by the petitioner in the affidavit filed

by the petitioner in support of the present writ petition

is as follows:

It is the specific case of the petitioner that the

respondent Nos. 2 to 4 and 7 disconnected the electricity

connection for electricity meter bearing USC No. 14986974,

SC No. 50022-91287 & USC No. 14990483 SC No. 50022-

99020 at premises bearing H.No. 5-6-735, Yellammagutta X

road, Saraswathi Nagar, Road No.1, Nizamabad of the

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petitioners for alleged default of payment of electricity

charges despite no dues or arrears and they issued notice

dated 27.04.2024 projecting the petitioners as defaulters.

Hence the writ petition.

PERUSED THE RECORD

4. The impugned notice dated 27.04.2024 reads as under:

" It is hereby informed that since you have not paid the pending bills for S.C. No. 91287, Yellammagundla Village, power supply has been disconnected from 27.04.2024. The meter reading at the time of disconnection of power supply is 15256. Further if the pending bills are paid, power supply will be restored.

Without making payments for the pending bills if power is used directly or from the meter or from any other service, action will be taken as per law for which you may be sent to jail or penalty may be levied".

DISCUSSION AND CONCLUSION

5. It is the specific case of the petitioner that the

petitioner is not in arrears or in default of payment of

electrical charges but however the impugned notice

dated 27.04.2024 was issued for disconnecting of

power supply. The learned counsel for the petitioner

submits that the said notice for disconnection of power

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supply is dated 27.04.2024 and the power supply was

disconnected on 27.04.2024 itself without any prior

intimation to the petitioner even though the petitioner

has no dues or arrears. Mr. Zakir Ali Danesh, learned

standing counsel appearing on behalf of respondent

Nos. 2 to 4 on instructions on the other hand submits

that the impugned notice dated 27.04.2024 had been

issued in the prescribed format in a routine manner and

in fact the petitioner has no dues or arrears. The said

submission of the learned standing counsel is brought

on record.

6. Learned Standing Counsel appearing on behalf of

respondent Nos.2 to 4 referring to the earlier order of

this Court dated 14.02.2024 passed in W.P. No. 8382 of

2021 filed by the petitioners herein submits that the

petitioners had not challenged the said order and as on

date had not approached the respondents with the

relevant documents and upon the petitioner

approaching the respondent authorities with relevant

documents, requesting for restoration of the electricity

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connection USC No. 14986974, SC No. 50022-91287 &

USC No. 14990483 SC No. 50022-99020 at premises

bearing H.No. 5-6-735, Yellammagutta X road

Saraswathi Nagar, Road No.1, Nizamabad the same

would be considered, in accordance to law.

7. Section 43 of the Electricity Act, 2003 reads as

under:

"Section 43. (Duty to supply on request) (1)(Save as otherwise provided in this Act, 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:

8. The Apex in the Judgment reported in 2023

LiveLaw (SC) 453 in between K.C.Ninan Vs. Kerala

State of Electricity Board and others passed in Civil

Appeal Nos.2109 and 2110 of 2004, dated 19.05.2023,

observed as under:

"Electricity Act, 2003; Section 43 - The duty to supply electricity under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities."

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9. The Apex Court in its Judgment reported in (2011)

12 Supreme Court Cases 314 in between Chandu

Khamaru Vs. Nayan Malik and Others passed in Civil

Appeal No.7575 of 2011 dated 02.09.2011 observed as

under:

Sub-section (1) of Section 42 and sub-section (1) of Section 43 of the Electricity Act, 2003 are quoted herein below:

"42. Duties of distribution licensees and open access-(1) It shall be the duty of a distribution licensee to develop and maintain an efficient co-ordinate and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act."

"43. Duty to supply on request-(1) Save as otherwise provided in this Act, 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."

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 co-ordinated 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 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.

12. The case of the appellant, on the other hand, is that this passage is not a private passage of respondent Nos.1 to 3

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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 Civil Judge (Junior Division), Howrah, or in any other suit, but pending resolution of this dispute between the parties, the appellant cannot be denied supply of electricity to his house.

11. We, therefore, set aside the order of the learned Single Judge as well as the impugned order of the Division Bench and dispose of the Writ Petition of respondent nos.1 to 3 with the direction that the distribution licensee will find out whether there is any other way in which electric line can be drawn for supply of electricity to the house of the appellant, other than the disputed passage in Dag Nos.406, 407 and 409. If there is no other way to supply electricity to the house of the appellant, the distribution licensee will follow the provisions of sub-section (2) of Section 67 of the Electricity Act, 2003 for carrying out the work for supply of electricity to the house of the appellant.

9. The Apex Court in the Judgment reported in 2022

LiveLaw 570 in between Dilip (dead) through LRs Vs.

Satish and others passed in CRLA No.810 of 2022

(arising out of Special Leave petition (CRL)No.8917 of

2019, dated 13.05.2022 observed as under:

"It is not disputed that applicant No.1 has obtained the connection of electricity. The submissions made show that applicant No. 1 is in possession of the shop and he is running a saloon shop. It is clear that he needs electricity for doing this business, but the first informant was not giving no objection certificate. He took every step to see that applicant No. 1 does not get supply of electricity for his business. It is not the case of the Applicant No. 1 that as per the agreement between him and landlord, the landlord is bound to supply the electricity. Further, the Electricity Board seeks no objection of landlord only to verify that the possession

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of the tenant is authorised. There is no other purpose behind obtaining such no objection from landlord. The landlord cannot prevent the tenant from availing such facility at his own cost.

It is now well settled proposition of law that electricity is a basic amenity of which a person cannot be deprived. Electricity cannot be declined to a tenant on the ground of failure/refusal of the landlord to issue no objection certificate. All that the electricity supply authority is required to examine is whether the applicant for electricity connection is in occupation of the premises in question. Be that as it may, the High Court clearly fell in error in quashing the FIR. It cannot be said that fabrication and/or creation of records and/or forging a signature does not constitute an offence under the Indian Penal Code. The High Court completely overlooked the definition of cheating in Section 415 of the IPC. It is however made clear that electricity supply granted, shall not be discontinued, subject to compliance by the Respondents of the terms and conditions of supply of electricity by the electricity department including payment of charges for the same."

10. Taking into consideration

(a) The observations of the Apex Court in the judgments referred to and extracted above,

(b) Duly considering Section 43 of the Electricity Act, 2003, and

(c) Duly considering the submissions made by the learned Standing Counsel appearing on behalf of respondent Nos.2 to 4, The writ petition is disposed of directing the petitioners

to approach the respondent Nos.2 and 4 with all the

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relevant documents within one week from the date of

receipt of a copy of this order and the respondent Nos.

2 and 4 are directed to consider the same in accordance

to law duly taking into consideration the observations

of the Apex Court (referred to and extracted above)

and take appropriate action duly considering the

request of the petitioner for restoration of the

electricity connection USC No. 14986974, SC No.

50022-91287 & USC No. 14990483 SC No. 50022-99020