w w w . L a w y e r S e r v i c e s . i n


    Decided On, 29 June 2012
    At, High Court of Gujarat At Ahmedabad

Judgment Text
1. By this petition under Article 226 of the Constitution ofIndia, the petitioner seeks the following substantive relief:

'[16] The petitioner, therefore, prays -

[a] This Hon'ble Court be pleased to issue a writ ofmandamus and/or any other appropriate writ, order ordirection in the nature of mandamus declaring that theaction of the respondents in removing the meter anddisconnecting the electric power on 13.06.2011 is wrong,illegal, contrary to law and in violation of the establishedprinciples of natural justice including the principle of audialteram partam and in violation of the principles of theElectricity Act, 2003 and the Electricity Code which hasbeen enacted or framed u/s 50 of the Electricity Act andbe further pleased to direct the respondents to reinstallthe meter and start the supply of electric power in thefield of the present petitioner in block Nos.120, 121 and122.

[b] By appropriate writ, order or direction, this Hon'bleCourt be pleased to hold the respondent No.2 herein Mr.R. C. Patel as well as the other officials of the respondentNo.1 company who have not followed the principles ofnatural justice and provisions of law, responsible forillegal disconnection and they be called upon tocompensate the present petitioner for the illegaldisconnection and the respondents and/or otherresponsible officers be directed to pay to the petitioner acompensation of Rs.1 lac for such illegal disconnection.'

2. The facts of the case as stated in the petition are that thepetitioner is the owner of the property bearing Block No.120,121 and 122 situated in Village: Sanavad, Taluka: Kalol, District:Gandhinagar (hereinafter referred to as the 'subject land').The property belonged to Maganji, father of the presentpetitioner and upon his death, the same vested in oneShakaraji and the present petitioner. Upon the death ofShakaraji, the petitioner became the sole owner of the saidland. Agricultural activities are being carried on over thesubject lands and cattle are there on the site. The lands on thewestern side of the said survey numbers, viz., survey No.113,114, 116, 115 and others, have been consolidated and givenone block number, viz., Block No.113/3. The total area of thesaid land is about 84,000 square metres. The petitioner hasestablished a farm known as 'Barot Farm' on the said BlockNo.113/3 and Block No.120, 121 and 122. For the purpose offetching water from the bore and also to feed the cattle on site,the petitioner made an application to the first respondent –Uttar Gujarat Vij Company Ltd in the year 2007-08, which cameto be granted and the petitioner was given CustomerNo.20442/00134/7 and Meter No.20401291. Pursuant toinstructions of the first respondent the petitioner depositedRs.725/- towards new service connection on 15.10.2008 and onthe same day the petitioner was called upon to depositconsumer security deposit of Rs.1,450/- which was dulydeposited. Since 2008, the petitioner has been regularly payingthe electricity bills raised by the first respondent company.When the electricity power was sought for, the same wasgranted, but so far as the meter of electricity supply isconcerned, the same was placed by the first respondent inBlock No.113/3, because, at the relevant time when theapplication was made by the petitioner, the whole of the landincluding the subject land and Block No.113/3 formed part ofland on which Barot farm was established. Therefore, with theconsent of the owner/occupier of the land bearing BlockNo.113/3, the first respondent placed the meter in the BlockNo.113/3 which was very near to the main line of therespondent company which was passing near Block No.113/3.

2.1 According to the petitioner sale deeds in respect of thesubject lands had been illegally executed in favour of the thirdrespondent - Blue Diamond Co-operative Housing Society Ltd.Such sales had not been recognised by the Government andthe tenancy authorities and a number of disputes are pendingbefore the civil court with regard to the ownership of the thirdrespondent society. However, possession of the subject lands iswith the petitioner.

2.2 Things were going on regularly for four years, however,thereafter, one Jayendra Kothari tried to illegally trespass uponthe land bearing Block No.113/3 pursuant to which, criminalproceedings were filed and the said person along with oneVishnu Patel and Paresh Sheth, had broken open the seal of themeter and with the help of wires, they had illegally drawnelectricity and utilized the same. The petitioner had, therefore,filed a complaint with the first respondent. However, no actionwas taken and after about two months, that is, on 4.6.2011,some officers of the respondent company had come to thefarm for inspection and the documents produced on the recordof this petition were produced before them to establish that themeter has been placed legally and that the utilization of poweris legal and is confined to block No.120, 121 and 122 for whichelectric power was sought for as per the original application.The petitioner has categorically averred that the originalapplication is not traceable at the end of the petitioner andthat the first respondent be called upon to produce the same.

2.3 It is further the case of the petitioner that by aletter/application dated 13.6.2011, the petitioner gave detailedinformation regarding the meter and it was also pointed outthat the meter was broken by head strong persons and if theneed arises the petitioner is prepared to shift the meter to herblocks, that is Block No.120, 121 and 122 and had shown readiness and willingness to pay the charges in connectiontherewith. In connection therewith there was a talk with thesecond respondent Mr. R. C. Patel, whom the power of attorneyof the petitioner had met and a note in respect thereof wasadded in the said letter. At about 11:30 a.m. the saidapplication was given in person to Mr. R.C. Patel by the powerof attorney of the petitioner. It is alleged that by that timesomeone had greased Mr. Patel’s palm. It is further the case ofthe petitioner that Jayendra Kothari against whom criminalcomplaints have been filed is also a leader of village Sanavadand is a reputed member of the B.J.P. He has recently beenemployed by Blue Diamond Co-operative Society Ltd. to getpossession of the land more particularly Block No.113/3 as wellas the subject lands. Therefore, Mr. R.C. Patel had threatenedthe power of attorney of the petitioner that he would see to itthat the electric meter is removed and the power isdisconnected before the power of attorney goes back to thefarm and that he would impose heavy penalty beyond theimagination of the petitioner. When the petitioner returned ataround 2.00 p.m., the meter was removed and the power wascut off. It is alleged that the said action has been taken by therespondents because of political pressure and that the presentpetitioner who is poor farmer has been put to a lot ofinconvenience and hardship. In view of the disconnection of theelectricity supply, the petitioner is now not able to pump outwater for agricultural purposes, for feeding cattle and a largenumber of difficulties have arisen. There is no light andtherefore, the milk business is also affected and the security ofthe land is also strained and that in the absence of light,several animals enter into the land at night and eat away thecrops. According to the petitioner, despite knowing the difficulties likely to be faced by the petitioner and being awareof the adverse consequences, the first and second respondentshave taken away the meter and disconnected the power. It is inthe aforesaid background that the petitioner has filed thepresent petition seeking the relief noted hereinabove.

2.4 Subsequently, the petitioner has filed an additionalaffidavit dated 10.8.2011 stating that after the petition wasfiled on 15.6.2011, a letter was addressed by the firstrespondent whereby the petitioner has been intimated that themeter connection of Thakor Chandaben Maganji was inspectedon 3.6.2011 and while checking it was noticed that the singlephase meter was not found as per the demand and on thatbasis report of the Talati was called for and panchnama wasmade by the Talati and it was found that though electricityconnection was sought for in respect of survey No.120, 121and 122, the meter was installed in survey No.113/3 whichbelongs to Blue Diamond Cooperative Housing Society.Therefore, on 13.6.2011, the electricity connection which wasrunning in the name of Thakor Chandaben Maganji wasdisconnected and the meter and the connection were takenover by the Department. In the very letter, it is stated that thepetitioner had written a letter on 13.06.2011 stating that if themeter is installed in some other survey number, the same canbe switched over to a survey number which belongs to thepetitioner. However, survey No.120 also belongs to BlueDiamond Cooperative Housing Society and they have made areference of Civil Suit No.302 of 1995 wherein the BlueDiamond Cooperative Housing Society Ltd. has obtainedinjunction to the effect that the possession and enjoyment ofthe property should not be prevented. Further facts have been averred in the said affidavit which shall be referred to at anappropriate stage.

3. Mr. M. B. Gandhi, learned advocate for the petitionervehemently assailed the action of the first respondentcompany in removing the electricity meter as well asconnection given to the petitioner. It was submitted that theelectricity connection had been given in respect of BlockNo.120, 121 and 122 and that the petitioner was in possessionof the said lands. Electricity connection had been givenpursuant to an application made by the petitioner. However,without issuance of any notice and without taking any steps inaccordance with law as envisaged under the provisions of theElectricity Act, 2003 (hereinafter referred to as 'the Act'), thepower supply given to the petitioner has been disconnected.Attention was invited to the provisions of section 43 of the Actwhich provides for duty to supply on request, to submit thatthe petitioner had made application as prescribed under theAct and the rules framed thereunder pursuant to which, therespondent had given electric connection under section 43 ofthe Act. Referring to the provisions of section 56 of the Act,which deals with disconnection of supply in default of payment,it was submitted that the supply of electricity can bedisconnected only in the eventualities envisaged under thesaid provision. It was submitted that in the facts of the presentcase, it is not the case of the first respondent that thepetitioner has neglected to pay any charge for electricity orany sum other than the charge for electricity due from her.Even in case where a person has neglected to pay any chargeof electricity or any other sum, the respondent is required togive fifteen days clear notice in writing prior to cutting of the supply of electricity. In the present case, there being no defaulton the part of the petitioner to pay any electricity charge, theprovisions of section 56 of the Act could not have beenresorted to. It was submitted that there is no other provision inthe Act which empowers the first respondent to disconnect theelectricity supply. Under the circumstances, the removal of theelectric meter and disconnection of the electricity supply iswithout authority of law.

3.1 Next it was submitted that disconnection of power supplyhas serious civil consequences and as such prior todisconnecting the electricity supply, it was incumbent upon thefirst respondent to give the petitioner an opportunity ofhearing. The impugned action of the respondents having beentaken without affording any opportunity of hearing to thepetitioner is, therefore, clearly in breach of the principles ofnatural justice.

3.2 In support of his submissions, the learned counsel placedreliance upon the decision of the Supreme Court in the case ofRaghunath Thakur v. State of Bihar and others, AIR 1989SC 620, wherein the court has held that there is an impliedprinciple of the rule of law that that any order having civilconsequence should be passed only after following theprinciples of natural justice. Reliance was also placed upon thedecision of this court in the case of Lifecare Institute ofMedical Science and Research Pvt. Ltd. v. United IndiaInsurance Co. Ltd. and others, 2010 (2) GLH 512, for theproposition that when a decision would adversely affect aparty, before taking such decision, principles of natural justiceshould be followed. The decision of the Supreme Court in the case of Municipal Corporation of Delhi v. M/s Ajanta Iron& Steel Company (Pvt.) Ltd., AIR 1990 SC 882, was citedwherein an order directing mandatory injunction to restore thesupply of electricity discontinued during the pendency of thesuit was subject matter of challenge. The court held that thelicensee undertaking is performing a public duty and isgoverned by a special statute and the law also contemplatesservice of a notice before disconnection of supply of electricityand dismissed the appeal.

3.3 Referring to the communication dated 16.6.2011 of thefirst respondent, it was pointed out that it has been stated inthe said communication that the first respondent is willing toput up a meter on any other survey number belonging to thepetitioner. It is also stated therein that insofar as the landbearing survey No.120 of Sanavad village is concerned, thesame belongs to Blue Diamond Cooperative Housing Society, inrespect of which there is a stay order in relation to surveyNo.120, 121 and 122 and that the petitioner should furnishnecessary evidence to show her ownership of the land bearingsurvey No.120. It was submitted that the petitioner's fatherMaganji was the original owner of the subject lands and thatthe first respondent is not justified in entering into the disputeas regards the ownership of the subject lands. The petitionerhas already produced evidence in the form of village formNo.7/12 which shows the name of Thakor Shakaraji Maganjiand the petitioner Chandaben Maganji Thakor and that even ason date, that is, for the year 2008-09 and 2009-10, the name ofShakaraji Maganji Thakor is shown as agriculturist, meaningthereby that the agricultural work is carried out by thepetitioner at the site. In respect of survey No.120, 121 and 122,in the column of owner as well as in the column of agriculturist,the name of the petitioner is reflected. It was submitted thatBlue Diamond Cooperative Housing Society Ltd. is not anagriculturist and had no right to purchase the subject land andas such the sale of the subject lands in its favour was notconfirmed. It was argued that the subject lands being newtenure lands, could not have been transferred without priorpermission and as such, Blue Diamond Cooperative HousingSociety had never become the owner thereof. According to thelearned counsel, the possession of the subject lands is and hasalways been with the petitioner and that in a subsequentlitigation, a commission had been appointed, wherein thepetitioner has been found to be in possession thereof. Attentionwas invited to the panchnama produced along with additionalaffidavit to submit that the petitioner not only is in possessionof the lands bearing survey No.120, 121 and 122, but alsoBlock No.113/1 which admeasures about 8 hectares.

3.4 It was, accordingly, submitted that the action of therespondents of disconnecting the electricity supply of thepetitioner without issuance of any notice, is without authorityof law and that in any case, the say of the respondent that thesubject lands belong to Blue Diamond Cooperative HousingSociety Ltd. has no legal basis whatsoever. Under thecircumstances, the petition deserves to be allowed with adirection to the respondents to reinstall the meter and start thesupply of electricity power in the field of the petitioner insurvey No.120, 121 and 122.

3.5. In support of his submissions, the learned counsel placedreliance upon the decision of the Calcutta High Court in the case of Molay Kumar Acharya v. Chairman-cum-ManagingDirector, W. B. State Electricity Distribution Co. Ltd. andothers, AIR 2008 Calcutta 47 for the proposition that theperson occupying premises as 'licensee' cannot be equatedwith an unlawful occupant or trespasser merely becauselitigations are pending between the parties. The decision of theCalcutta High Court in the case of Fashion ProprietorAswani Kumar Maity v. W. B. Electricity Distribution Co.Ltd. and others, AIR 2009 Calcutta 87, was cited for theproposition that if the law of the land provides that a person inpossession of any premises may not be dispossessed therefromexcept in accordance with law, it is implicit that the possessionof the person is protected till such time that an appropriateforum holds otherwise and the person is removed from thepremises under due process of law. Under the circumstances,he cannot be denied an essential utility as electricity which iswithin the broad sweep of the right to life guaranteed underArticle 21 of the Constitution.

4. Vehemently opposing the petition, Mr. Yatin Oza, SeniorAdvocate, learned counsel for the third respondent – BlueDiamond Cooperative Housing Society Ltd. submitted that thelands bearing survey No.120, 121 and 122 are of the ownershipand possession of the third respondent and as such, the firstrespondent could not have granted electricity connection tothe petitioner in respect of the said survey numbers. Attentionwas invited to the copies of the registered sale deeds annexedalong with the application made by the third respondent forbeing joined as respondent in the present petition, to submitthat Shakaraji Maganji Thakor as well as the petitioner hereinhad executed the sale deeds in favour of the third respondent society. That upon the sale deeds having been executed infavour of the third respondent, the petitioner stood divested ofall rights and title in the subject lands. Under thecircumstances, the say of the petitioner that she is the ownerof the subject lands is contrary to the record. It was submittedthat merely because the authorities under the Bombay Tenancyand Agricultural Lands Act, 1947 (hereinafter referred to as'the Tenancy Act') had, at the relevant time, not grantedpermission to the third respondent-Blue Diamond CooperativeHousing Society Ltd. for purchasing the subject lands and hadnot approved of the sale in favour of the third respondent, doesnot mean that the third respondent has lost all rights and titlein the subject lands, unless the sale deeds executed in favourof the third respondent are set aside.

4.1 The learned counsel referred to the provisions of theTenancy Act to submit that in case any sale of agricultural landis found to be in contravention of the provisions of the said Act,the authorities under the said Act are required to initiate theproceedings under section 84-C thereof. Till such proceedingsare initiated and the same culminate into an order declaringthe sale to be invalid, the sale continues to be valid. It wassubmitted that even if the Mamlatdar comes to the conclusionthat the acquisition of the land by the third respondent isinvalid, the land would not revert back to the original owner,namely, the petitioner herein, but would vest in theGovernment. It is only if after a declaration that the acquisitionis invalid, the parties to the transfer or acquisition give anundertaking in writing to the Mamlatdar as provided under subsection (2) of section 84-C of the Tenancy Act, to the effect thatthey shall restore the land along with the rights and interest therein to the position in which it was immediately before thetransfer or acquisition, that the land would revert to theoriginal owner, which is not so in the present case. Therefore,the contention of the petitioner that she is the owner of theland in question is incorrect, both in facts and in law.

4.2 The learned counsel drew the attention of the court to theapplication made by the petitioner whereby she had sought forelectricity connection to submit that the same does notmention the survey number in respect of which the connectionis sought. Attention was also invited to the contents of theorder passed by the learned Joint Civil Judge (J.D.), Kalol, belowexhibit-5 in Regular Civil Suit No.302 of 1995 which had beeninstituted by the third respondent society against the petitionerherein, to submit that in the said proceedings, the court hasfound that the possession of the subject lands is with the thirdrespondent and has restrained the petitioner from in anymanner disturbing the third respondent’s possession thereof. Itwas submitted that the petitioner has suppressed all thesefacts in the petition and as such, the petition is required to bethrown out on the ground of suppression of material facts. Itwas emphatically argued that the petitioner having come tothe court with unclean hands is not entitled to any equitablerelief. In support of the said contention, the learned counselplaced reliance upon the decision of the Supreme Court in thecase of K. D. Sharma v. Steel Authority of India Limitedand others, (2008) 12 SCC 481, for the proposition that theparty who invokes the extraordinary jurisdiction of theSupreme Court under Article 32 or of a High Court under Article226 of the Constitution is supposed to be truthful, frank andopen. He must disclose all material facts without any reservation even if they are against him. He cannot be allowedto play 'hide and seek' or to 'pick and choose' the facts helikes to disclose and to suppress (keep back) or not to disclose(conceal) other facts. The very basis of the writ jurisdictionrests in the disclosure of true and complete (correct) facts. Ifmaterial facts are suppressed or distorted, the very functioningof the writ courts and exercise would become impossible. Thepetitioner must disclose all the facts having a bearing on therelief sought without any qualification. If the petitioner does notdisclose all the material facts fairly and truly but states them ina distorted manner and misleads the court, the court hasinherent power in order to protect itself and to prevent anabuse of its process to discharge the rule nisi and refuse toproceed further with the examination of the case on merits.

4.3 The learned counsel further submitted that the contentionraised on behalf of the petitioner that approval under therelevant provisions of the Tenancy Act had not been given tothe respondent society, is also incorrect inasmuch as theproceedings which had been initiated against the thirdrespondent society under the provisions of section 84-C of theTenancy Act have been dropped by the Mamlatdar and the saidorder has been confirmed till the stage of the revisionalauthority.

4.4 Next it was submitted that it is not in every case that ashow cause notice is required to be given prior to taking anyaction. In support of his say, the learned counsel placedreliance upon the decision of the Supreme Court in the case ofSecretary, Andhra Pradesh Social Welfare ResidentialEducational Institutions v. Pindiga Sridhar and others,(2007) 13 SCC 352, for the proposition that the principles ofnatural justice cannot be applied in a straitjacket formula. Theirapplication depends upon the facts and circumstances of eachcase. To sustain the complaint of the violation of principles ofnatural justice, one must establish that the respondent wasprejudiced for non-observance of the principles of naturaljustice. The decision of the Supreme Court in the case of Stateof Chhattisgarh and others v. Dhirjo Kumar Sengar,(2009) 13 SCC 600, was cited for the proposition that theauthority who issued an order is justified in cancelling the sameon coming to know about any fraud committed while obtainingthe said order. The authority is not required to comply with theprinciple of audi alteram partem before such cancellation, sincefraud vitiates all solemn acts. Reliance was also placed upon adecision of the Supreme Court in the case of State of A. P. v.T. Suryachandra Rao, (2005) 6 SCC 149, for the propositionthat misrepresentation or false representation and suppressionof material fact or document amounts to fraud. Adverting tothe facts of the present case it was submitted that thepetitioner had made an application for electricity connection inrespect of the lands of which she was not the owner andthereby had made a false representation to the firstrespondent, which amounts to fraud and as such, therespondents were justified in disconnecting the electricitysupply inasmuch as fraud vitiates everything. It was,accordingly, submitted that the petition being devoid of merit,deserves to be dismissed.

5. Mr. S. P. Hasurkar, learned advocate for the first andsecond respondents supported the action of the saidrespondents by placing reliance upon the averments made in the affidavit in-reply filed on behalf of the said respondents,and submitted that the petitioner had sought for electricityconnection in the prescribed Form A-1 wherein she haddescribed the premises of the land on which the connection issought for, to be of her ownership and considering herstatement, electricity connection was given after undertakingpreliminary search on the basis of her statement and the placewhich the petitioner's representative had shown. However,subsequently it was found that there was a dispute betweenthe petitioner and Shri Jayendrabhai Vishnuprasad Kothari,Secretary of the Blue Diamonds Cooperative Housing Society. Itwas submitted that said Jayendrabhai Vishnuprasad Kotharihad written a letter to the office of the respondent, inter alia,stating that the land of survey No.120 and 113/3 of VillageSanavad is in possession of Blue Diamond Cooperative HousingSociety and is not in possession of Chandaben MaganjiRamsangji (the petitioner herein) who happens to be thepredecessor in title of the third respondent. It was stated thatthe phase I connection has, therefore, been installedunauthorizedly in survey No.113/3. In the aforesaidcircumstances, further inquiry in respect of the site was carriedout and checking sheet was prepared by a Junior Engineer on13.6.2011. Upon verification at the site, it was not clearwhether the connection was given at the place where thepetitioner had demanded and, therefore, for further verificationof ownership of the land and actual position of site, by a letterdated 4.6.2011, information was sought from Talati of villageSanavad. Pursuant thereto, the Talati made a panchnama andreport on 8.6.2011, stating that the electric meter is situatedon the land of survey No.113/3 occupied by Blue DiamondCooperative Housing Society. It was, accordingly, contended that the first respondent had been misguided at the time whenpower supply was given to the petitioner in survey No.113/3,which appears to be owned by the third respondent. Since thepetitioner was transmitting electricity for a distance ofapproximately 300 meters through non-standard wiring, thesaid connection was immediately disconnected and cables andother materials were seized after making proper Rojkam andpreparing checking sheet. Thereafter, the Divisional Office, atKalol had informed the petitioner as regards the action takenfor disconnection of power supply and called upon her toproduce documentary evidence to show the ownership of thesubject land and to seek fresh connection. Under thecircumstances, the action taken by the respondents is just,proper and legal and there is no malafide intention on the partof the respondents.

5.1 It was contended that the petitioner herself hasmisguided the officers of the first respondent company in thematter of installation of electricity connection which wassubsequently found to be of somebody else's land and hence,upon a written complaint, action was required to be taken. Insupport of his submissions, the learned counsel placed relianceupon the decision of the Supreme Court in the case ofSecretary, Andhra Pradesh Social Welfare ResidentialEducational Institutions v. Pindiga Sridhar and others(supra) as well as the decision of the Supreme Court in thecase of K. D. Sharma v. Steel Authority of India Limitedand others (supra). It was submitted that in case any mishapoccurs on the land of the petitioner, but the connection ofelectricity is on somebody else's land, it would result inmultiplicity of proceedings for damages against the respondents and that the respondents would not be justified intrespassing while giving electricity connection to the petitioner.It was submitted that merely because the electricity connectiongiven to the petitioner has been disconnected does not meanthat the same is permanently disconnected and it is for thepetitioner to show an undisputed site for installation ofelectricity connection, whereupon such connection will begiven to the petitioner. It was, accordingly, urged that therespondents are justified in disconnecting the electricityconnection given to the petitioner by placing a meter on theland belonging to the third respondent and as such, thepetitioner is not entitled to the relief claimed for in the petition.

6. Before adverting to the merits of the case, it may benecessary to notice certain facts as emerging on the basis ofthe documents produced on record by the respective parties.The petitioner made an application in the prescribed form viz.A-1 to the first respondent company seeking electricityconnection for residential purposes. A perusal of the formindicates that in the column against status of the applicant'sposition in respect of the place wherein the followingcategories are enumerated, namely, (1) self-ownership, (2)joint ownership, (3) tenant, (4) lease and (5) others, shows thatall the boxes are kept blank. In respect of the details regardingsite, the same is mentioned as 'Nasmed Chokadi, Barot Farm,Village Sanavad'. The name of the person in possession of theland is shown to be Thakor Chandaben Maganji Ramsangji. Thename of the applicant is Thakor Chandaben Maganji, namely,the petitioner herein. However, the application appears to havebeen signed by one Amrutaben Shakaraji, and one RameshShakaraji has signed as a witness to the said application. Along with the application, a consent letter signed by Thakor RameshShakaraji and Amrutaben Shakaraji has been annexed, statingthat they do not have any objection if electricity connection isgiven in the name of Chandaben Maganji Ramsangji Thakor inrespect of lands bearing survey No.120, 121 and 122. Anundertaking has also been filed along with the applicationwhich bears the thumb mark of Ramesh Shakaraji Thakor,Chandaben Maganji Thakor and Amrutaben Shakaraji Thakor tothe effect that the electricity connection is sought for thepurpose of residential use only and that they would use thesame only for the said purpose. Pursuant to the aforesaidapplication, the petitioner was granted electricity connectionand was enjoying the benefit thereof.

7. Subsequently, it appears that the third respondent madean application to the first respondent company in respect ofthe electricity connection given to the petitioner pursuant towhich, the officers of the first respondent company came to thefarm of the petitioner on 4.6.2011 for inspection, whereuponaccording to the petitioner, all documents relevant for the saidpurpose were shown to the officers to establish that the meterhad been legally placed there and that the utilization of powerwas legal and was confined to survey No.120, 121 and 122 forwhich electric power was sought for as per the originalapplication. Thereafter, on 13.6.2011, the petitioner againaddressed a communication to the first respondent withreference to the alleged false application made by JayendraKothari, inter alia, stating that there was no illegality in theelectricity connection given to the petitioner and that since thesame pertains to essential services, the same ought to be filed;that the disputes between the parties are sub-judice and the application by a third party does not establish anything; thepetitioner possesses a legal electricity connection and isregularly paying her bills and has not committed any illegalitiesand that her persons, labourers, women, children etc. areresiding there. Hence, some assistance should be given tothem. A footnote has been made, stating that, as stated byShri R. C. Patel in person, they are ready and willing to pay thenecessary charges for shifting the meter to another surveynumber and as such, necessary charges in accordance with lawmay be recovered from them, but their enjoyment of essentialservices may not be disturbed. Thereafter, it appears that thefirst respondent on 13.6.2011 itself disconnected the electricitysupply given to the petitioner without issuing any show causenotice as contemplated under section 56 of the Act and withoutfollowing any procedure laid down thereunder.

8. On 16.6.2011, the first respondent addressed acommunication to the petitioner which insofar as is relevant forthe present purpose, as translated into English, reads thus:

'Upon checking the electricity connection given to ThakorChandaben Maganji, at the farm house situated at MoujeSanavad, Taluka Kalol, bearing survey No.120, it has beenfound that single phase meter has not been put up on thesaid survey number, and that upon obtaining furtherinformation from the Talati of Village Sanavad, he hassubmitted a report and panchnama which shows that theelectricity connection to the farm house of ChandabenMaganji has been given on survey No.113/3 of theownership of Blue Diamond Society instead of surveyNo.120 in respect of which, the application had beenmade. Therefore, the office of the first respondent has,on 13.6.2011, disconnected the electricity connectiongiven to the said farm house which is running in thename of Thakor Chandaben Maganji and removed thesingle phase meter and service line and taken possession thereof. Since instead of survey No.120 in respect ofwhich the electricity connection had been sought for,connection has been given on land of the ownership ofsome other person bearing survey No.113/3, the officehas, in accordance with the rules, disconnected theelectricity supply and removed the service line. Pursuantto the communication dated 13.6.2011 for givingelectricity connection on other survey number, in the saidletter, it has not been stated as to on which surveynumber she wants the electricity connection to beshifted. Hence, the survey number should be clearlyspecified. In case the petitioner desires to shift theelectricity connection to the earlier survey No.120, in thatcase, it may be noted that in respect of the said surveyNo.120 of Sanavad, Blue Diamond Society had videletters dated 21.5.2011 and 14.6.2011 stated that inrelation to survey Nos.120, 121 and 122, in the year1995, Civil Suit No.302 of 1995 came to be instituted inthe Civil Court, at Kalol wherein Blue Diamond Societyhad been granted interim injunction against the petitionerin respect of survey Nos.120, 121 and 122 restraining theapplicant from in any manner disturbing the thirdrespondent society; and that the aforesaid surveynumbers have been sold to Blue Diamond Society byregistered sale deeds in the year 1982 which findreference in the extracts of the village form No.7/12 inthe second rights column, which evidence has beenproduced by Blue Diamond Society. That the electricityconnection had been approved in relation to surveyNo.120 for Barot Farm House, hence, the applicant shouldshow as to whether the survey No.120 is presently of herownership or not and in respect thereof, should produceextracts of village form No.7/12, extracts of village formNo.8/A, application as well as copy of the interiminjunction passed by the Civil Court in Regular Civil SuitNo.302 of 1995 as well as any evidence to show that thedeeds executed by her have been cancelled within aperiod of seven days.'

9. From the facts noted hereinabove, it appears that on theapplication made by the petitioner, electricity connection cameto be given at the place called 'Barot Farm'. The approval wasgranted for giving connection to survey No.120, however, the actual connection was given on survey No.113/3. It appearsthat the first respondent company had received somecomplaint with regard to the connection granted to thepetitioner, pursuant to which, inspection was carried out andthe petitioner had made representations against suchapplication and had also submitted that the petitioner wasready and willing to pay necessary charges for shifting themeter to another survey number. Thus, it appears that themeter in question was actually installed at the wrong surveynumber and not at survey No.120 in respect of which theelectric connection had been approved. Thus, it is apparentthat the petitioner was granted electricity connection pursuantto an application made by her and the same has beendisconnected without issuance of notice as contemplatedunder section 56 of the Electricity Act, 2003. It would,therefore, be pertinent to refer to the provisions of section 56of the Act to examine the applicability of the same to the factsof the present case.

10. Section 56 of the Electricity Act provides for disconnectionof supply in default of payment. In the facts of the presentcase, it is not the case of the first respondent that thepetitioner had defaulted in payment of its dues and as such, itis apparent that the provisions of section 56 of the Act wouldnot be attracted. Under the circumstances, when disconnectionis not sought to be made on the ground of default of paymentof any charge of electricity, the question of resorting to andfollowing the procedure as laid down under section 56 of theAct would not arise.

11. It may be recalled that though the electricity connection was sanctioned to the petitioner in respect of survey No.120 ofVillage Sanavad, the electric meter was installed at a distanceof approximately 300 meters, in survey No.113/3 which land,according to the respondents, belongs to the third respondentsociety. Thus, apparently the electric meter has been installedat a place other than that approved by the competentauthority. Under the circumstances, when the placement ofmeter was itself without authority of law, for removal thereof, itwould not be necessary to resort to the provisions of section 56of the Act. Moreover, as noted hereinabove, section 56 of theAct can be resorted to only in case where the consumerneglects to pay the charges of electricity which is not so in thepresent case.

12. From the facts referred to hereinabove, it is apparent thatpursuant to the complaint made by the third respondent, theofficers of the first respondent had inspected the premises ofthe petitioner on 4.6.2011, and hence, the petitioner wasaware of the fact that a complaint had been received in respectof the electricity connection given to her and had alsoproduced the documents in support of her say that the meterwas legally installed and that the utilization of power was alsolegal, which is apparent from the averments made in thememorandum of the petition. Thus, it is not as if the petitionerwas caught unawares as regards the proceedings culminatinginto disconnection of the electricity supply. The petitioner waswell aware that proceedings have been initiated in connectionwith the application received by the first respondent companyalleging that the connection given to the petitioner is not legal.Subsequently, on 13.6.2011, the day on which the electricityconnection came to be disconnected, the petitioner had written another letter to the first respondent company alleging that theapplication against the petitioner be filed and showingreadiness and willingness to pay the charges for shifting themeter to survey Nos.120, 121 and 122. Thus, it cannot bestated that the entire exercise of disconnecting the electricitysupply was without notice to the petitioner. True it is that nonotice as envisaged under section 56 of the Act had beenissued to the petitioner; however, as noted earlier, theprovisions of section 56 of the Act would not be attracted in thepresent case. Under the circumstances, the contention that theprinciples of natural justice have not been followed is notentirely correct.

13. Another aspect that arises for consideration is thatapparently the meter had been installed on land other thanthat in respect of which the electricity connection wassanctioned. Under the circumstances, the petitioner cannot beheard to say that even if on account of some mistake ornegligence on the part of the officers of the first respondentcompany, the meter is installed at a wrong place, the samecannot be rectified without following the procedure ascontemplated under section 56 of the Act. At the cost ofrepetition, it may be stated that in the present case, thesituation is not one which requires resort to the provisions ofsection 56 of the Act as this is not a case of non-payment ofdues. This is a case where the first respondent company hasreceived a complaint to the effect that the electricityconnection given by it is illegal and that the same has beengiven on the land belonging to the complainant and not to theconsumer. In such circumstances, when the conditionsprecedent for resorting to the provisions of section 56 of the Act are not made out, the question of following the procedurelaid down thereunder does not arise. A person who hasobtained electricity supply on premises other than for which itwas sanctioned, cannot be heard to contend that such supplycannot be disconnected unless the conditions precedent forexercise of powers under section 56 of the Act are satisfied. Byway of an illustration, if an officer of the first respondentcompany gives an illegal connection to a consumer without anyauthority of law, can the consumer then contend that be as itmay, he may have obtained the connection illegally, however,the respondents are bound to continue with the electric supplyand so long as he pays his electricity dues, the supply cannotbe disconnected. In the present case, as noted hereinabove,the application for electricity connection does not mention anysurvey number. Despite there being several lacunae in theapplication, for reasons best known to the petitioner and theconcerned officers of the first respondent company, the samehas been granted without proper verification of the facts. Nowit turns out that though the approval was given for surveyNo.120, the actual connection has been given on surveyNo.113/3 which is at a distance of about 300 meters. One canimagine such a mistake occurring in case of connection givenfor agricultural purposes, or even industrial purposes, however,one fails to understand as to how a connection for residentialpremises, which ordinarily is not given unless building usepermission is obtained, could have been given by placing themeter at a distance of about 300 meters away. Nonetheless,once the respondents have discovered their error, may bethrough an application by an interested party, they are boundto undo the wrong done. The petitioner, therefore, cannot insiston continuation of the electricity supply from the wrong place.Insofar as these proceedings are concerned, it is apparent thatthe petitioner had notice of the same and had even maderepresentations against the same. Under the circumstances,the contention regarding breach of the principles of naturaljustice does not merit acceptance.

14. The question that next arises for consideration is thateven if the disconnection is not bad on the ground that thesame was given at a wrong place, it is a matter of fact that thefirst respondent company has sanctioned the application of thepetitioner for electricity connection at the farm house known as'Barot farm' at survey No.120. Then, are not the respondentsrequired to give an electricity connection at the place asapproved by them?

15. In this regard, though ordinarily the court would be loathto enter into a dispute as regards the ownership of the land ina proceeding of this nature, in the peculiar facts of the presentcase, it would be necessary to briefly touch this aspect. Thefacts as emerging on record indicate that the father of thepetitioner, namely, Maganji Thakor was the original owner ofthe subject lands. Subsequently, vide three separate registeredsale deeds executed by (1) Shakaraji Maganji Thakor, (2) RasikShakaraji Thakor and (3) the petitioner – Chandaben MaganjiThakor, in favour of the third respondent society, dated30.8.1982, 31.8.1982 and 31.8.1982 respectively, the landsbearing survey No.120, 121 and 122 of Village Sanavad cameto be transferred in favour of the third respondent society. Itappears that at the relevant time, when the sale deeds cameto be executed, prior permission had been sought for, whichhad been granted. However subsequently, non-agricultural permission came to be cancelled and consequently, therevenue authorities were of the view that the sale in favour ofthe third respondent was in breach of the provisions of section63 of the Tenancy Act, and as such, the name of the thirdrespondent society was not entered in the record of rights, viz.,village form No.6. However, as between the petitioner and thethird respondent, it is apparent that the title of the said landshad passed to the third respondent and the petitioner had beendivested of all right, title and interest over the subject lands.On behalf of the petitioner, it had been contended that the salewas set aside under the provisions of the Tenancy Act and assuch, the ownership of the land was retained by the petitioner.The said contention is evidently misconceived inasmuch asthough the sale in favour of the third respondent society wasnot recognized under the tenancy laws, the actual sale hadnever been set aside. Even under the provisions of the TenancyAct, when the competent authority under the said Act findsthat a sale has been made in contravention of the provisions ofthe Act, it is required to initiate the proceedings under section84-C of the Act. If after holding an inquiry as contemplatedunder sub-section (1) of section 84-C of the Tenancy Act, theMamlatdar comes to the conclusion that the transfer oracquisition of the land is invalid, he is required to make anorder declaring the transfer or acquisition to be invalid, unlessthe parties to such transfer or acquisition give an undertakingin writing within a period of three months from such date asthe Mamlatdar may fix, that they shall restore the land alongwith rights and interest therein to the position in which it wasimmediately before the transfer or acquisition and the land isso restored within that period. Thus, even if a sale is held to beinvalid under the provisions of the Tenancy Act, even then,unless the parties to the transfer agree to restore the statusquo ante, the lands will not stand restored to the originalowner. Thus, merely because there is an endorsement in therevenue record that the sale in favour of the third respondent isin breach of the provisions of section 63 of the Tenancy Act, thesame does not tantamount to the land having reverted back tothe original owner. Moreover, it emerges from the record thatthe proceedings under section 84-C were in fact initiated, butthe same came to be dropped. The matter was carried till theGujarat Revenue Tribunal, which is pending. Thus, it is apparentthat there is no declaration under the Tenancy Act that the salein question is invalid and as such, as of now, apparently thepetitioner does not have any right, title or interest in the saidland.

16. The next question to be examined is as to whether thefirst respondent company is bound to give electricityconnection to the petitioner at survey No.120 in terms of theapproval granted by it earlier even if the petitioner is not ableto establish ownership of the land.

17. In this regard, in support of the contention that thepetitioner is in possession of the subject lands and as such, isentitled to connection of electric supply thereon and that thereis ample evidence, in the nature of panchnama and othercontemporaneous documents evidencing possession of thepetitioner, the learned advocate for the petitioner has placedreliance upon the decision of the Calcutta High Court in thecase of Molay Kumar Acharya v. Chairman-cum-ManagingDirector, W. B. State Electricity Distribution Co. Ltd. andothers (supra). It may be noted that in respect of the lands bearing survey No.120, 121 and 122, the third respondentsociety had instituted a suit in the Court of the learned JointCivil Judge (J.D.), Kalol being Regular Civil Suit No.302 of 1995against the petitioner herein. In the said suit, the thirdrespondent had filed an application for interim injunctionseeking an injunction against the petitioner and othersrestraining them from in any manner disturbing its possessionof the subject lands. The trial court after considering thematerial on record and hearing the learned counsel for therespective parties, by a detailed reasoned order, has held thatthe third respondent is possession of the subject lands and hasgranted interim injunction re

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straining the defendants, namely,the petitioner and others, from in any manner obstructing thethird respondent’s possession and enjoyment of the landsbearing survey No.120, 121 and 122 of Mouje Sanavad. Thus,as of now, there is an injunction order of a court of competentjurisdiction restraining the petitioner and others fromdisturbing the third respondent’s possession of the subjectland. This is a finding of fact arrived at upon appreciation of theavailable evidence on record. Undisputedly the order of thetrial court has neither been set aside nor stayed by anysuperior forum, and is still in force. Under the circumstances, inthe opinion of this court, any direction to give electricityconnection to the petitioner on the disputed land wouldamount to giving a direction to defy the interim injunctionpassed by the civil court. It is settled legal position that theHigh Court in exercise of its extraordinary writ jurisdictionunder Article 226 of the Constitution would not direct thecommission of an illegal act. If the reliefs as prayed for in thepetition were to be granted, the same would amount to anillegality inasmuch as the same would amount to directing the first respondent company to disobey the directions issued bythe trial court on the application for interim injunction made bythe third respondent. Under the circumstances, it is notpossible to grant the relief prayed for in the petition wherebythe petitioner seeks a direction to the first and secondrespondents to reinstall the electricity meter which has beenremoved and to start supply of electric power in the field of thepetitioner being lands bearing survey Nos.120, 121 and 122. 18. Last but not least, from the facts as emerging on record,it is obvious that the petitioner has not come to the court withclean hands. Firstly, the petitioner has not placed on recordthe copy of the application made by it, which in the context ofthe fact that the same was made only for residential purpose,assumes significance, more so in the light of the avermentsmade in the petition that the petitioner is not in a position tocarry out agricultural activities and its milk business and tofeed the cattle on site etc. In fact, even the relief prayed for inthe petition is to direct the respondents to reinstall the meterand start supply of electric power in the field of the petitionerin survey Nos.120, 121 and 122. Apparently, therefore, theelectric supply is being used for non-residential purposes. Thus,the petitioner with a view to gain sympathy of the courtappears to have deliberately suppressed correct facts. Thelearned advocate for the petitioner has submitted that due toinadvertence, it appears that the facts regarding petitioner notbeing able to fetch water from the bore have been statedinasmuch as the panchnama indicates that there is no bore onthe land in question. The fact that there may not be bore onthe land does not detract from the fact that the petitioner hasmade certain averments on oath in the petition stating that she is not able to pump out water for agricultural purpose, forfeeding cattle and large number difficulties have arisen; thatthere is no light and that the milk business is also adverselyaffected; the security of the land is also strained and that inabsence of light, several animals enter into the land at nightand eat away the crops. Thus, either the petitioner is not usingthe electricity connection for residential purpose or she hasstated incorrect facts with a view to gain the sympathy of thecourt. In either case, it is apparent that correct facts have notbeen stated in the petition. Moreover, despite the fact that aninjunction granted by a court of competent jurisdiction wasoperating against the petitioner, the said facts have not beenbrought on record and it has come on record only after thethird respondent society made an application for being joinedas party and brought the said facts on record. Thus, nondisclosure of the aforesaid facts amounts to suppression ofmaterial facts. The petitioner by her own conduct has,therefore, disentitled herself from the grant of any relief asprayed for. 19. On behalf of the respondents, reliance has been placedupon various decisions in support of their say that in case offraud etc., principles of natural justice need not be compliedwith as well as for the proposition that where the petitionermakes false statement or conceals material facts, the courtmay dismiss the petition at the threshold without consideringthe merits of the case. In the light of the view that the courthas taken as aforesaid, it is not necessary to discuss the saiddecisions in detail. 20. For the foregoing reasons, the petition fails and is,accordingly, dismissed. Notice is discharged. 21. At this stage, the learned advocate for the petitioner hassubmitted that in case it is not possible for the first respondentto give electricity connection in respect of the lands bearingsurvey No.120, 121 and 122 of village Sanavad, the petitionermay be granted electricity connection in respect of some othersurvey numbers as proposed by the first respondent in thecommunication dated 16.6.2010. In this regard, in case thepetitioner makes a fresh application indicating the surveynumber in respect of which she wants a fresh electricityconnection, needless to state that the first respondentcompany may consider the same in accordance with law afterdue verification, as expeditiously as possible.