Heard learned advocate for the parties.
The petitioner by way of this under Article 226 of the Constitution of India has approached this Court with the following prayers;
"(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 29.02.2012 passed by respondent No.3 in Review Case No.4 of 2011 and further be pleased to direct the respondent No.1 Vij Company to mediately restore the electric connection for the premises in question;
(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay operation, implementation and execution of the order dated 29.02.2012 passed by respondent No.3 in Review Case No.4 of 2011 and further be pleased to direct the respondent No.1 Vij Company to immediately restore the electric connection for the premises in question;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
The facts in brief leading to filing this petition, as could be culled out from the memo of petition are required to be set out as under;
The petitioner was constrained to prefer Regular Civil Suit No.99 of 2007 before the competent Court for relief of permanent injunction against apprehended unlawful eviction by the defendants. During the pendency of the said Civil Suit, wherein injunction was granted restraining the respondent from evicting the petitioner without procedure of law, but the electricity supply was discontinued at the behest of the landlord and defendant. The petitioner was, therefore, constrained to approach the Deputy Collector - respondent No.3 by preferring Misc. Application No. 1 of 2007 under the provision of Section 23-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act" for short) for seeking appropriate direction, wherein the petitioner had joined one Shri Manishankar Pathak, father of the defendant. In fact petitioner had filed Civil Suit against one Shri Kamlesh Manishankar Pathak, but for the reason best known to the petitioner he choses to file complaint and joined only Manishankar and did not join Kamlesh. The concerned Deputy Collector after satisfying himself with regard to the propriety of passing appropriate order, passed an order directing the Electricity Company to provide electricity supply irrespective of consent of the owner of the premises. This has happened on 05.11.2007. Accordingly, the Electricity Company resumed its supply and petitioner is enjoying electricity supply. The said Manishankar passed away in the year 2011 and the original defendant - present respondent no.2 herein in this petition approached the concerned Deputy Collector with Review Application being Review Application No.4 of 2011, in which a contention was taken that petitioner has not acknowledged or recognized or given status of a tenant as such, and as he was not tenant, he could not have invoked provision of Section 23-A of the Rent Act and therefore, the order which was passed at the behest of petitioner had proceeded on altogether incorrect premise and, therefore, that order being palpable, erroneous and incorrect, is required to be reviewed and appropriate order is required to be passed. This Application was resisted on various grounds including that of delay and not being maintainable, as the review power is conspicuously lacking in the authority, as could be seen from the plain language of Section 23-A of the Rent Act. The review was also filed on the ground that the review applicant was not joined as party respondent and the order was obtained behind the back of the review applicant.
This Review application is accepted in its totality and the order is reviewed and as a result thereof the Electricity Company disconnected the supply. Hence, the present petition.
Learned advocate for the respondent no.2 relying upon the decision of this Court in case of Ghadhvi jitendra Ishwardas Vs. B.K.Thakker & Ors. reported in 1994(2) GLR 1053, contended that the review is permissible, even if it is not provided, as the incorrect Act or any order passed erroneously, cannot be perpetuated and, therefore, the review, even if it is not expressly provided for, is to be read into the provision as enshrined in the jurisdiction flowing from the common law tenants and, therefore, in such a case where it is admitted that the petitioner chose not to join the original defendant in the suit, as the defendant in the application, it was clear case of sharp practices adopted by the petitioner and, therefore, the concerned Collector was justified in allowing the review.
Learned advocate for respondent no.2 relying upon the decisions of this Court in case of Shantilal Keshavlal Pathak Vs. Assistant Collector, Vadodara & Ors. reported in 31 (1) GLR 549 and Prabhudas Hiralal Rathod Vs. City Deputy Cololector, Ahmedabad & Ors. reported in 1984 (2) GLR 823, contended that the bare minimum satisfaction expected of Collector, while examining and entertaining the application under Section 23-A of the Rent Act is well defined by this Court in the aforesaid two authorities and, therefore, it was a duty cast upon the concerned Collector to first record his satisfaction qua prima facie evidence with regard to the petitioner being lawful in possession of the premises being a tenant and in absence thereof the jurisdiction would not be available to the Collector to entertain this petition.
Learned advocate for respondent no.2 further submitted that the petitioner has chosen to join the father of the petitioner who happened to be no party in the suit proceeding. The suit proceeding contained name of the present respondent no.2 as defendant and the prayers are made against him. Therefore, ex facie, it would not have been possible for the concerned Collector to pass order which he passed in favour of the petitioner and directed the Electricity Company to supply electricity.
Learned advocate for respondent no.2 further submitted that the petition would not be maintainable in view of the fact that there existed an alternative remedy in form of filing appeal or revision before the District Court. In order to support this contention, learned advocate for the respondent no.2 relied upon the decision of this Court in case of Ghadhvi jitendra Ishwardas Vs. B.K.Thakker & Ors. (supra) and contended that the order impugned is passed by the concerned Collector in exercise of the power enshrined in him for rectifying his own error and, therefore, at the best revision would have been applicable and this Court may not interfere under Article 226 of the Constitution of India.
The Court has heard learned advocate appearing for the parties and perused the copy of the order. The following indisputable facts are required to be narrated to understand the real controversy between the parties.
(i) It is undisputed that the petitioner is in possession of the property since decades.
(ii) The petitioner has filed suit being Civil Suit No.99 of 2007 against eviction and there he has joined present respondent no.2 as defendant.
(iii) It is also a fact that petitioner had filed application under Section 23-A of the Rent Act and in that application the present respondent no.2 was not joined as party opponent.
(iii) The concerned Collector passed an order accepting the application on 05.11.2007.
(iv) Pursuant to the order dated 05.11.2007, the petitioner was granted electricity connection and he enjoyed electricity supply thereafter.
(v) The concerned officer while exercising power under Section 23-A was apprised of the grounds taken by the party respondent therein namely; Pathak Manishankar Jethalal in respect of the petitioner being not tenant or petitioner being trespasser. Therefore, one can safely conclude that the concerned officer at the relevant time when he was passing order on 05.11.2007 was aware about the controversy involved in the matter and yet in his wisdom he passed an order on 05.11.2007, whereby the concerned Electricity Company was directed to supply electricity.
(vi) The respondent no.2 filed Review Application being Review Application No.4 of 2011 contending that the petitioner was not tenant and he could not have, therefore, invoked provision of Section 23-A of the Rent Act. This Revision Application was filed by respondent no.2 and it was allowed by the officer vide order dated 29.02.2012 and as a result thereof the Electricity Company has discontinued the supply.
Against the aforesaid factual background, question arises as to whether the Collector was empowered to review his own order that too after a lapse of about more than three years. The Rent Act and the scheme thereunder is required to be borne in mind while deciding the controversy raised before this Court.
It is not disputed by learned advocate for respondent no.2 that the factum of tenancy and the status of tenant would be falling in the exclusive domain of rent court and the petitioner is in possession of that premises since years. The injunction of the Civil Court is inuring in his favour. Therefore, for abrupt discontinuation of the electricity, if the persons is in possession like petitioner, is approaching the Court or taking recourse of the remedy under Section 23-A of the Rent Act, then prima facie there was absolutely no irregularity and/or illegality so as to deal serious blow to the respective rights and obligations of the parties.
The scheme of the Rent Act contains Section 23-A and that power is not left to the Civil Court in any manner, but a special power is granted to Collector to make order for supplying electricity to the occupier irrespective of the landlord's consent or willingness. The person who is in occupation, even if he is a trespasser, has to be dealt with only in accordance with law. The system of rule of law prevail in this country would persuade this Court to unhesitatingly hold that the rule of law dictates strict compliance therewith in which even a trespasser is not required to be thrown off without following due process of law. When in the course of that due process of law, one party has protection of court of law and the electricity is enjoyed, then abrupt discontinuation thereunder and restoration of the electricity by order of Collector cannot be said to be so obnoxious so as to shock the conscience of the Court.
In view of the broad principle laid down hereinabove, now let us examine the controversy and rival contentions by the learned advocate for the parties. The Court is of the view that as the power of review is not available with the Collector and as the review being express provision of law the same could not have been exercised and, therefore, the order is hit by lack of jurisdiction.
Learned advocate for respondent no.2 was not justified in arguing that there exists alternative remedy, as the impugned order prima facie lacked jurisdiction in Collector to pass, therefore, this was wholly without jurisdiction and therefore, writ petition was very much available and the citation cited at the bar would be of no avail to the respondent no.2.
The glaring fact that the order made in the year 2007 was sought to be challenged by way of review petition only in the year 2011, indicates lack of bonafide on the part of the respondent no.2 and therefore, it was heavy duty cast upon him to make out a case as to how and in what manner the order passed by Collector in the year 2011, could be defended.
Learned advocate for respondent no.2 could not discharge the burden, as it was not possible to be discharged in view of the glaring facts, which heavily militate against the case of the respondent no.2.
The order impugned, in my view is without jurisdiction and, therefore, the same is required to be quashed and set aside. As a result thereof the original order dated 05.11.2007 would now become effective and is revived and accordingly the same shall be binding between the parties.
The observations made hereinabove are confined to controversy involved in this matter and shall have no bearing upon the dispute and litigation pending between the parties. The petition is allowed to the aforesaid terms. There shall be no order as to costs.
The respondent no. 1 shall act on the order dated 05.11.2007 and restore the electricity connection forthwith.
In light of this, Civil Application No.4679 of 2012 would not survive and disposed of accordingly.
Direct service is permitted.
(S.R.BRAHMBHATT, J.) Pankaj Top