IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13936 of 2011 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI =================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law
4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================= JITENDRASINH NATWARSINH ZALA - Petitioner(s) Versus VARJANGBHAI VAGHAJIBHAI BHARWAD POA OF NARENDRASINH B GOHEL & 20 - Respondent(s) ================================================= Appearance :
MR JV VAGHELA for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. MR RAJESH K SHAH for Respondent(s) : 1, MR JAYANT P BHATT for Respondent(s) : 2, ================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 09/08/2012 CAV JUDGMENT
1. This petition is preferred under Article 227 of the Constitution of India seeking declaration to quash and set aside the order dated 29.3.2010 passed in Civil Miscellaneous Appeal No.10 of 2010 by the learned Additional District Judge, Anand, whereby he set aside the order of the trial Court rejecting the application at Exh.5 passed in Regular Civil Suit No. 251 of 2009.
2. Aggrieved by the order of the appellate Court original defendant No.2 has preferred this petition.
3. Heard learned advocates Mr. J.V. Vaghela for the petitioner and learned advocates Mr.R.K.Shah and Mr. J.P. Bhatt for the respondents.
4. For the reasons to be followed hereinafter petition deserves no meritorious consideration:
4.1 There has to be exceptional circumstances for this Court to intervene in supervisory jurisdiction under Article 227 of the Constitution of India.
4.2 Law in this regard is very well laid down and hardly requires any reiteration. Suffice to state at this stage that unless there is material illegality causing injustice to the party, no interference would be warranted. The petitioner has averred that owner Ramanbhai Patel sold the suit land to the petitioner by way of registered sale deed dated 13.10.2009. Therefore, in Regular Civil Suit No.109 of 2009 preferred by the present respondent against the original owner, the present petitioner had been allowed to be impleaded as the party. The suit has been preferred and renumbered as Special Civil Suit No.70 of 2011. The petitioner is aggrieved by the order of the appellate forum on the ground that the petitioner was not impleaded nor was the original owner party to the Appeal No.10 of 2010 and the Court on complete disregard to the documentary evidence and his written submission submitted along with the report of the Court Commissioner, chose to favour the present respondent. It is also the say of the petitioner that respondent No.1 Varjanbhai Vaghajibhai Bharwad has no right to get electric connection because respondent No.1 is not the original owner. The original owner had only executed the agreement to sale and on account of the dispute between the parties, the original owner would have the right to disconnect the connection of respondent No.1. It is also the say of the petitioner that respondent No.1 used the electrical connection for agricultural purpose which is in breach of Section 135 (2)(b) of the Act and, therefore also, the order impugned requires to be quashed and set aside. Filing of Regular Civil Suit No. 251 of 2009 against respondent No.2 without joining the original owner is absolutely not a tenable proposal.
5. Learned advocate for the respondent thus urges that there is no requirement to interfere inasmuch as the Court has taken due care of all the aspects and directed mandatory injunction.
6. The dispute pertains to electrical connection in respect of agricultural land bearing Survey No.874 admeasuring 05868 sq.mtrs. situated at village: Karamsad, Taluka and District: Anand. Ramanbhai Patel purchased this property from the original owner by way of registered sale deed in the year 1992. Ramanbhai executed agreement to sale in favour of Narendrasinh Gohel and other two persons on 17.9.1993 on a condition that if the payment was not made as stipulated, the agreement to sale would be cancelled. As the payment was not made, the same was cancelled. However, Narendrasinh Gohel executed the power of attorney on 30.3.2009 in favour of Varjangbhai Vagjibhai Bharwad respondent No.1 herein and the power of attorney holder respondent No.1 filed Regular Civil Suit No. 109/ 2009 against Ramanbhai Patel. The original owner gave an application for disconnecting such electrical connection and the same was disconnected on 6.7.2009. Respondent No.1 filed Regular Civil Suit No. 251 of 2009 without impleading the original owner Ramanbhai Patel. The panchnama prepared by the Court Commissioner is reflective that Narendrasinh Gohel with whom Ramanbhai Patel had executed the sale was not residing. However, his power of attorney was residing in the suit land, who had applied for electrical connection for residential purpose for a single phase, however, he used the same for agricultural purpose, which according to the petitioner is a clear breach of Section 135(2)(b) of the Electricity Act.
7. In this background, the learned trial Court dismissed the application for injunction on 25.1.2010. In the meantime, Ramanbhai Patel sold the suit land to the petitioner by way of registered sale deed on 13.10.2009 and, therefore, as mentioned herein he sought to implead himself as party defendant in Regular Civil Suit No. 109 of 2009. The Court permitted such impleadment.
8. The dispute essentially appears to be that of the land. It appears that after having once granted electrical connection respondent No.2 disconnected the same within 5 months on having received application from the original owner Ramanbhai Patel. The power of attorney holder respondent No.1 has already preferred Regular Civil Suit against original owner and such suit is pending for adjudication. There appears prima facie the possession of respondent No.1 of the suit land and in such circumstances, the appellate Court was of the opinion that electrical connection could not have been disconnected by respondent No.2 without affording any opportunity. The Court also was of the opinion that it is not on the ground of change of use from the residential purpose to the agricultural purpose that the disconnection was directed but it was solely on account of the application received from original owner that respondent No.2 chose disconnection without affording any opportunity of hearing to the person concerned. The Court rightly pointed out that it is not the case of the respondent No.2 that the connection was given to the person, who is intruder or a tresspasser. Prior thereto such application was given to respondent No.2 by original owner for disconnecting the electrical connection. There was already civil suit pending for specific performance of the agreement to sale and in such background, when any disconnection is requested by the original owner, the same can be construed as means to exercise the powers of authority to exercise the leverage. The Appellate Court committed no error in setting aside the order of the trial Court and granting mandatory relief. Assuming for a moment that respondent No.1 chose not to implead the present petitioner or the original owner as the party respondents in appellate proceedings. Independent examination of the facts also would not lead this Court to interfere with the order impugned. It would be desirable for the parties to approach the Court for equitable relief to disclose even the interest of those persons, who are claiming the land on their own or through the actual owner. Be that as it may, this appears to be a case where the original owner chose to approach respondent No.2 behind the back of respondent No.1 and respondent No.2 acted upon such request without availing any opportunity and verifying the disputes which are pending between the parties in respect of the suit land and, therefore also, at this stage of application for injunction, the appellate Court was right in holding that the equity could not have been changed and if there is any irregularity or breach of any of provisions of the Electricity Act, respondent No.2, of course, is within its right to exercise such powers as provided under the statute independently. But, for present, this Court finds no injustice to the petitioner herein who is a subsequent purchaser after the electrical connection was given to respondent No.1 and much after the suit was preferred by respondent No.1 against original owner. Resultantly, this petition does not survive and is dismissed. However, this will not preclude respondent No.2 to resort to the provision of law if any breach is committed by any party. Petition in such circumstances, stands disposed of.
(Ms.Sonia Gokani, J.) sudhir