Vanitaben Narotambhai Thumbar vs State Of Gujarat & Ors

Hemant M. Prachchhak, J

Rule returnable forthwith. Mr. Premal R. Joshi, learned counsel waives service of notice of rule for and on behalf of respondent Nos. 2 and 3. With consent of learned counsels appearing for both the sides, the matters are taken up for final hearing today.

In view of the fact that identical and similar issue is involved in both the petitions, they are being decided by this common judgment.

Both these petitions are preferred by the petitioners under Articles 14, 19, 21 and 226 of the Constitution of India r/w the provisions of Electricity Act challenging the impugned connection from the respondent authority pertaining to rejection of the electric connection.

Since an identical issue is involved, Special Civil Application No.15311 of 2024 is treated as lead petition and in the said petition, petitioner has prayed for following relief/s:-

"9(A) The Hon'ble Court may please to admit and allow this petition by issuing the writ of mandamus or certiorari or any other appropriate writ quashing and setting aside the impugned communication from the respondent authority which at annexure-A pertaining to rejection of the electric connection in the facts and circumstances of the present case;

(B) The Hon'ble Court may please to direct the respondent nos. 2 and 3 herein to provide electric connection at the property situated at B-103, Unnati Palace, Pipaliyanagar, Keshod, Junagadh;

(C) Pending admission, hearing and till the final disposal of this present petition, this Hon'ble Court may please to direct the respondent no. 2 to grant electric connection at the property situated at B-103, Unnati Palace, Pipaliyanagar, Keshod, Junagadh in the interest of justice;

(D) YOUR LORDSHIPS be pleased to grant such other and further orders, as may be deemed fit and proper by this Hon'ble Court in the interest of justice;"

The facts mentioned in the lead petition i.e. Special Civil Application No.15311 of 2024 are that the petitioner is residing with her family and is engaged in the construction business along with her sons. In the year 2015, the petitioner undertook a project named "Unnati Palace" on jointly owned land, comprising 24 flats. Due to financial constraints, the petitioner borrowed money from private individuals and, as security, handed over documents of certain flats while also paying interest at the rate of 7% per month. Despite having repaid amounts exceeding the principal, the petitioner and her family members were subjected to continuous harassment and unlawful demands. Under such pressure, the petitioner was compelled to execute sale deeds of several flats at undervalued rates in favour of the said persons.

5.1 Thereafter, the said persons allegedly threatened the petitioner's family, trespassed into their residence, caused damage to property, and attempted to extort money. Although complaints were lodged before the police authorities, no effective action has been taken. In the meantime, the petitioner applied for an electricity connection for her flat; however, the same was denied on the basis of objections raised by the said persons. Despite the building being completed in 2016 and completion of all necessary formalities, including payment of charges and installation work, the electricity connection has not been granted.

5.2 The petitioner, being the lawful owner and taxpayer of Flat No. 301, made repeated applications and representations seeking reasons for such denial; however, no satisfactory response has been provided, nor have the authorities justified their action. Under these circumstances, the petitioner has approached this Hon'ble Court by way of the present petition.

Heard Vilaskumar R. Thomar for learned counsel for the petitioner and Mr. Dipak R. Dave, learned counsel for the respondent.

Learned counsel for the petitioner submitted that the persons objecting to the grant of electricity connection have no locus standi and are merely acting to harass the Petitioner, against whom multiple representations are already under process.

7.1 He has submitted that any pending property dispute has no bearing on the grant of an electricity connection.

He has submitted that the Petitioner is in possession of the premises and has even initiated proceedings against third-party money lenders. He has submitted that the Respondent authority has wrongly denied the electricity connection. As held by the Hon'ble Gujarat High Court in Executive Engineer vs. Jayendra Nanalal Kachhi, electricity is to be supplied to a consumer and not linked to ownership or legality of possession. He has submitted that under Section 43 of the Electricity Act, 2003, it is the statutory duty of the distribution licensee to provide electricity within the prescribed time and failure to do so attracts penalty. He has submitted that the Respondent has failed to comply with this mandate.

7.2 Learned counsel for the petitioner submits that the Petitioner has purchased the property and invested substantial resources but is unable to enjoy its use due to the arbitrary denial since 2015and the Respondent authority has no jurisdiction to adjudicate property disputes and in absence of any court order, denial of electricity connection is unjustified.

7.3 Learned counsel for the petitioner submits that the objectors have neither established possession nor initiated any civil proceedings regarding ownership of the premises. The Petitioner is in physical possession but is unable to use the premises effectively. Learned counsel for the petitioner submits that a positive recommendation for granting the connection was earlier made, but it was withheld due to objections from third parties and granting the connection will cause no prejudice to any party and is a basic necessity. He has submitted that the Respondent has failed to provide reasons or relevant documents, including copies of objections, despite requests. He has submitted that the electricity connections have been granted to other occupants in the same building and despite RTI requests the Respondent has failed to disclose the basis for such approvals, indicating arbitrary and discriminatory action.

7.4 In view of the aforesaid facts and circumstances, learned counsel for the petitioner has submitted that action and / or inaction on the part of the respondent authority is illegal, arbitrary, unjust, improper and bad in the eye or law, and therefore, the same deserves to be quashed and set aside.

On the other hand, Mr. Dipak R. Dave, learned counsel for the respondent Nos. 2 and 3 has objected the petition.

8.1 The learned counsel for the Respondents submits that the application for grant of electricity connection was not rejected arbitrarily, but was kept pending in view of objections raised by third parties claiming rights over the subject premises. It is contended that due to the existence of a dispute regarding ownership and possession, the Respondent authority acted cautiously and refrained from granting the connection to avoid any further legal complications or multiplicity of proceedings. It is further submitted that the Petitioner has failed to produce clear and conclusive documents establishing undisputed possession and entitlement over the property.

8.2 Learned counsel for the respondents submits that in cases involving rival claims, the authority is required to exercise administrative prudence and act in good faith, which has been done in the present case. The reliance placed by the Petitioner on judicial precedents is stated to be distinguishable on facts, as the present matter involves specific objections from third parties. It is also contended that the electricity connection has not been permanently denied but is kept pending until the dispute is resolved or appropriate orders are passed by a competent court. The Respondents deny all allegations of arbitrariness, discrimination, or mala fide intention and submit that their actions are in accordance with the applicable rules and procedures. Hence, it is prayed that the present Petition be dismissed as premature and devoid of merits.

I have perused the materials and relevant documents available on record. I have also gone through the record of the petition as well as impugned communication.

Having heard the learned advocates for the respective parties and having perused the material on record this Court finds that the petitioner has duly established ownership as well as possession over the subject property. Despite such situation the action of respondent authority in not granting or restoring the electricity connection to the petitioner is wholly arbitrary, unjust and contrary to the statutory mandate.

This Court notes that Section 43 of the Electricity Act, 2003 casts a mandatory statutory duty upon the distribution licensee to supply electricity to the owner or occupier of the premises upon application. Once the petitioner has established his status as an owner and occupier of the premises in question, respondent authority could not have denied or withheld the electricity connection. It is well settled in catena of decisions that the electricity authority cannot adjudicate disputes of title between co-owners nor can it insist upon consent of other co-sharers once possession of the applicant is established.

Considering the settled legal principle enunciated by the Hon'ble Apex Court and this Court as early as 2010, respondent authority cannot venture to decide issues among co-owners or questions of right and title, nor can they insist upon the consent of other co-sharers.

At this stage, it appropriate to refer decision of Division Bench of this Court in Letters Patent Appeal No.91 of 2010 dated 27.1.2010, whereby the Division Bench of this Court has observed that:-

"In the present case, Counsel for the appellant has failed to show that any provision laid down under law or guidelines allowing a company to recover its dues by seizure of property or by auction sale of such property for which condition is imposed on consumer to show right or title in giving electrical connection. Such power being not vested under the law with the company and as the company cannot decide the disputed question of right and title, we are of the view that ownership or right of occupancy has no nexus with grant of electrical connection to a consumer. "

In view of the above observations, this Court is of the opinion that the question of ownership or right of occupancy has no nexus with the grant of an electricity connection to a consumer who is otherwise entitled, and if there are no due electricity charges outstanding against the petitioner, his application cannot be denied by respondent authority on the ground of objection raised by third party. Further, it appears that the estimated charges were communicated to the petitioner, and the petitioner has duly paid the said amount.

It is also appropriate to refer the decision of Hon'ble Apex Court in a case of Dilip (Dead) Through LRs vs. Satish and other reported in 2022 INSC 570 wherein the Hon'ble Apex Court in paragraph No.9 has observed as under:-

"9. 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."

It is a settled position of law that electricity, being a basic amenity, cannot be denied to a person on the ground of absence of a no objection certificate from the landlord, and the authority is only required to verify the applicant's occupation of the premises.

For the foregoing reasons both the petitions are allowed. The impugned communications dated 2.9.2024 issued by respondent authority (Annexure-A of both the petitions) are hereby quashed and set aside. The respondent authorities are hereby directed to supply new electricity connection to both the petitioners as prayed for in both the petitions, as early as possible preferably within period of 8 weeks from the date of receipt of copy of the order. Rule is made absolute to the aforesaid extent in both the petition. No order as to costs. Direct service is permitted.